what’s yours is mine – indeterminacy in cultural property restitution ... · what’s yours is...
TRANSCRIPT
What’s Yours Is Mine –Indeterminacy in Cultural
Property Restitution Debate
Pauno Soirila
Master’s Thesis
University of Helsinki
Faculty of Law
Legal History
May 2014
II
Tiedekunta/Osasto Fakultet/Sektion – Faculty Faculty of Law
Laitos/Institution– Department
Tekijä/Författare – Author Pauno SoirilaTyön nimi / Arbetets titel – Title What’s Yours Is Mine – Indeterminacy in Cultural Property Restitution DebateOppiaine /Läroämne – SubjectLegal HistoryTyön laji/Arbetets art – Level Master’s Thesis / Pro gradu
Aika/Datum – Month and year May 2014
Sivumäärä/ Sidoantal – Number of pages 87+XIV
Tiivistelmä/Referat – Abstract
Cultural property has come to have immense value to people around the world. Especially in Western nations culture has come tobe represented as and by things, and nation states place a great role on iconic pieces of art from their past. However, over thecourse of history, vast quantities of these objects have been relocated from around the world to other nations, especially to the ex-colonialist countries. For a long time, the plundering of art has been a central part of warfare; only after the Battle of Waterloo hasthe general opinion begun to change towards opposing it. International law finally illegalized plunder in warfare after the immenselooting campaigns by the Nazis in World War II.
Because of this long history of plunder, and most recently the nationalistic emphasis on cultural property, recent decades haveseen vast numbers of demands for restitution of cultural property into their countries and cultures of origin. However, even thoughthere has also been a growing trend of restitution visible in recent decades, for the most part the items stay in their currentlocations. There is a heated debate that has been going for decades, even centuries, around this subject, but although theoccasional return is made, it seems the debate does not notably progress anywhere. The debate is roughly divided into twoopposing viewpoints, ‘cultural nationalism’, centred around the idea that cultural property belongs inherently to the nation of origin;and ‘cultural internationalism’, which proposes that cultural heritage belongs to humanity in general, and its allocation needs to bedecided upon by other principles.
In the thesis I study the debate over the restitution of cultural property, in order to find out why it is that the debate has continuedfor so long in very similar tracks, without any apparent change. I propose that the debate mirrors the argumentation structures inthe theory of international law presented by Martti Koskenniemi in his work From Apology to Utopia. In both, the arguing partiesbase their case on a principle that is not inherently more preferable than the other – though in cultural property debate it is a matterof personal values, while in international law it is a question of effectiveness in the situation at hand. But in order to argue asuccessful case, both parties need to also use argumentation of the kind the opposing party uses. However, each argument canalso be criticized for either apologetic – granting too much power and leeway to the nations, letting them act as they please – orutopian – being too idealistic and unrealizable in reality. The debate also proves that the ‘nationalism’ and ‘internationalism’approaches are in fact not as separate from each other as they at first appear to be.
In the debate, the rhetoric often implies an approach completely devoid of any political consideration. However, it is shown thatneither side can claim to be truly apolitical, and in fact there is a great deal of politics involved in cultural property discourse overall.This also reflects the situation in international law, which has developed with the aim of separating it from politics, but is inevitablytied with it.
The argumentation ends up being a balancing act not to lean too much into apology or utopia. This structure of discourse, whichincludes the way each argument can be flipped and used by the other side, upholds the debate in perpetuity, until – in internationallaw – an external factor is brought in to decide the case. In cultural property debate, there is also the possibility of a fundamentalchange of perspective. I present and assess three such alternative approaches, ranging from two approaches that wouldfundamentally change the way cultural property is understood, to a more modest proposal of bringing internationalism andnationalism closer together. While the latter, pragmatic solution is more likely to be achieved, it also has more a risk to not bringany true change into the debate. Whether such a change is required, however, is another matter.
Avainsanat – Nyckelord – Keywords cultural heritage, cultural property, restitution, history politics, imperialism, museums, plunder, international lawSäilytyspaikka – Förvaringställe – Where deposited Helsinki University LibraryMuita tietoja – Övriga uppgifter – Additional information
III
Contents
Sources ........................................................................................................................................................ V
Abbreviations ........................................................................................................................................... XIV
1. Introduction ......................................................................................................................................... 1
1.1. Research questions and methodology .......................................................................................... 4
1.2. Structure ...................................................................................................................................... 7
2. Definitions ........................................................................................................................................... 9
2.1. Cultural Heritage and Cultural Property ........................................................................................ 9
2.1.1. Cultural Heritage................................................................................................................... 9
2.1.2. Cultural Property .................................................................................................................13
2.1.3. Non-legal Definitions ...........................................................................................................14
2.2. Cultural Internationalism & Cultural Nationalism .........................................................................16
3. Brief History of Cultural Property ........................................................................................................20
3.1. Ancient World and beyond – Near East, Greece, Rome ................................................................21
3.1.1. Near-East and Greece in Antiquity .......................................................................................21
3.1.2. Ancient Rome ......................................................................................................................23
3.1.3. Cicero and the Verrines........................................................................................................24
3.2. Cultural Property and War in Modernity ......................................................................................25
3.2.1. 30 Years’ War ......................................................................................................................25
3.2.2. Napoleon .............................................................................................................................28
3.2.3. World War II ........................................................................................................................30
4. What’s Yours is Mine – Cultural Property Argumentation ....................................................................34
4.1. Home culture ..............................................................................................................................35
4.1.1. Home culture subcategories ................................................................................................38
4.2. Context .......................................................................................................................................43
4.3. “New home culture” ....................................................................................................................45
4.4. Wrongful taking ...........................................................................................................................46
4.5. Ownership ...................................................................................................................................50
4.6. Preservation ................................................................................................................................51
4.7. Accessibility, ambassador ............................................................................................................54
4.8. Domino effect .............................................................................................................................60
4.9. Integrity ......................................................................................................................................61
5. Other Faces of Cultural Property .........................................................................................................64
5.1. Cultural property in history/memory politics ...............................................................................64
IV
5.2. Cultural property and imperialism ...............................................................................................69
6. From Apology to Utopia ......................................................................................................................72
6.1. International Law ........................................................................................................................73
6.2. Cultural Property debate .............................................................................................................75
7. Alternative Approaches .......................................................................................................................79
7.1. Cultural property as a non-renewable resource ...........................................................................80
7.2. Cultural property as Nietzschean aphorism..................................................................................81
7.3. Cultural pragmatism ....................................................................................................................83
8. Conclusion ..........................................................................................................................................85
V
Sources
International Conventions:
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer ofOwnership of Cultural Property (opened for signature 14 November 1970, entered into force 24April 1972) , 823 UNTS 231, FTS 91/1999 (UNESCO 1970)
Convention for the Protection of Cultural Property in the Event of Armed Conflict (opened forsignature 14 May 1954, entered into force 7 August 1956), 249 UNTS 240, FTS 92/1994 (Hague1954)
Convention for the Safeguarding of Intangible Cultural Heritage (opened for signature 17 October2003, entered into force 20 January 2006) 2368 UNTS 3, FTS 47/2013 (Paris 2003)
Other Official International Documents:
UN General Assembly, Resolution Adopted on the Ad Hoc Committee on the Palestinian QuestionResolution 181(II), UN Doc. A/516 at 131, 29 November 1947 (GA 181 (II))
UNESCO Recommendation Concerning the International Exchange of Cultural Property, 26November 1976 (UNESCO 1976)
International Charter for the Conservation and Restoration of Monuments and Sites, 31 May 1964(Venice 1964)
Australia ICOMOS Charter for the Conservation of Places of Cultural Significance, 19 August1979 (Burra 1979)
Books:
Chamberlin, Russell, 1983: Loot! The Heritage of Plunder. Thames & Hudson, London.(Chamberlin, 1983)
Cuno, James, 2008: Who Owns Antiquity: Museums and the Battle Over Our Ancient Heritage.Princeton University Press, Princeton and Oxford. (Cuno, 2008)
De Souza, Philip, 1999: Piracy in the Graeco-Roman World. Cambridge University Press,Cambridge. (De Souza, 1999)
Feliciano, Hector, 1997: The Lost Museum: The Nazi Conspiracy to Steal the World’s GreatestWorks of Art. Basic Books, New York (Feliciano, 1997)
Feyerabend, Paul, 1975: Against Method: Outline of an anarchist theory of knowledge. Verso,London (Feyerabend, 1975)
VI
Gillman, Derek, 2010: The Idea of Cultural Property. Cambridge University Press, Cambridge. 2nd
edition (Gillman, 2010)
Greenfield, Jeanette, 2007: The Return of Cultural Treasure. Cambridge University Press,Cambridge. 3rd edition (Greenfield, 2007)
Harrison, Rodney, 2013: Heritage: Critical Approaches. Routledge, London and New York.(Harrison, 2013)
King, Dorothy, 2006: The Elgin Marbles: The Story of the Parthenon and Archaeology’s GreatestControversy. Hutchinson, London. (King, 2006)
Koskenniemi, Martti, 2005: From Apology to Utopia: The Structure of International LegalArgument. Cambridge University Press, Cambridge. (Koskenniemi, 2005)
Lowenthal, David, 1998: The Heritage Crusade and the Spoils of History. Camridge UniversityPress, Cambridge. (Lowenthal, 1998)
McClellan, Andrew, 1994: Inventing the Louvre: Art, Politics, and the Origins of the ModernMuseum in Eighteenth-Century Paris. Cambridge University Press, Cambridge. (McClellan, 1994)
Meyer, Karl E., 1974: The Plundered Past. Hamish Hamilton, London. (Meyer, 1974)
Miles, Margaret M., 2008: Art as Plunder: The Ancient Origins of Debate about Cultural Property.Cambridge University Press, New York. (Miles, 2008)
Prott, Lyndel V. & O’Keefe, P.J., 1989: Law and the Cultural Heritage: Volume 3: Movement.Butterworths, London and Edinburgh. (Prott & O’Keefe, 1989)
St Clair, William, 1967: Lord Elgin and the Marbles. Oxford University Press, London. (St Clair,1967)
Trevor-Roper, Hugh, 1970: The Plunder of the Arts in the Seventeenth Century. Thames & Hudson,London. (Trevor-Roper, 1970)
Vrdoljak, Ana Filipa, 2008: International Law, Museums, and the Return of Cultural Objects.Cambridge University Press, Cambridge. (Vrdoljak, 2008)
Articles in Journals:
Akinsha, Konstantin: Stalin’s Decrees and Soviet Trophy Brigades: Compensation, Restitution inKind, or “Trophies” of War?. 17 International Journal of Cultural Property, p. 195 (2010)(Akinsha, 2010)
Alderman, Kimberly L.: The Human Right to Cultural Property. 20 Michigan State UniversityCollege of Law International Law Review, p. 69 (2011) (Alderman, 2011)
VII
Bator, Paul M.: An Essay on the International Trade in Art. 34 Stanford Law Review, p. 275 (1981-1982) (Bator, 1982)
Bilsel, Can: Zeus in Exile: Archaeological Restitution as Politics of Memory. Princeton UniversityCenter for Arts and Cultural Policy Studies: Working Paper Series, 13 (2000) (Bilsel, 2000)
Blum, Yehuda Z.: On the Restitution of Jewish Cultural Property Looted in World War II. 94American Society of International Law Proceedings, p. 88 (2000) (Blum, 2000)
Boardman, John: The Elgin Marbles: Matters of Fact and Opinion. 9 International Journal ofCultural Property, p. 233 (2000) (Boardman, 2000)
Carpenter, Kristen A., Katyal, Sonia K. and Riley, Angela R.: Clarifying Cultural Property. 17International Journal of Cultural Property, p. 581 (2010) (Carpenter, Katyal & Riley, 2010)
Cornu, Marie and Renold, Marc-André: New Developments in the Restitution of Cultural Property:Alternative Means of Dispute Resolution. 17 International Journal of Cultural Property, p. 1 (2010)(Cornu & Renold, 2010)
Fisk, Catherine L. and Gordon, Robert W.: Foreword – “Law As ...”: Theory and Method in LegalHistory. 1 University of California, Irvine Law Review, p. 519 (2011) (Fisk & Gordon, 2011)
Flessas, Tatiana: Cultural Property Defined, and Redefined as Nietzschean Aphorism. 24 CardozoLaw Review, p. 1067 (2002-2003) (Flessas, 2003)
Francioni, Francesco: The Human Dimension of International Cultural Heritage Law: AnIntroduction. 22 The European Journal of International Law, p. 9 (2011) (Francioni, 2011)
Gazi, Andromache: Museums and National Cultural Property I: The Question of Restitution. 9Museum Management and Curatorship, p. 121 (1990) (Gazi, 1990a)
Gazi, Andromache: Museums and National Cultural Property II: The Parthenon Marbles. 9Museum Management and Curatorship, p. 241 (1990) (Gazi, 1990b)
Gerstenblith, Patty: The Public Interest in the Restitution of Cultural Objects. 16 ConnecticutJournal of International Law, p. 197 (2000-2001) (Gerstenblith, 2001)
Goepfert, Karen: The Decapitation of Rameses II. 13 Boston University International Law Journal,p. 503 (1995) (Goepfert, 1995)
Grimsted, Patricia Kennedy: Legalizing “Compensation” and the Spoils of War: The Russian Lawon Displaced Cultural Valuables and the Manipulation of Historical Memory. 17 InternationalJournal of Cultural Property, p. 217 (2010) (Grimsted 2010)
Handler, Richard: Cultural Property, Culture Theory and Museum Anthropology. 21 MuseumAnthropology, p. 3 (1997) (Handler, 1997)
Hoffman, Matthew R.: Cultural Pragmatism: A New Approach to the International Movement ofAntiquities. 95 Iowa Law Review, p. 665 (2009-2010) (Hoffman 2010)
VIII
Jenkins, Ian: The Elgin Marbles: Questions of Accuracy and Reliability. 10 International Journal ofCultural Property, p. 55 (2001) (Jenkins, 2001)
Jones, Michael E.: What’s a Museum to Do: Nazi-Era Provenance. 2 International Journal ofHumanities and Social Science, p. 1 (2012) (Jones, 2012)
Klug, Nicole: Protecting Antiquities and Saving the Universal Museum: A Necessary CompromiseBetween the Conflicting Ideologies of Cultural Property. 42 Case Western Reserve Journal ofInternational Law, p. 711 (2009-2010) (Klug, 2010)
Knox, Christine K.: They’ve Lost Their Marbles: 2002 Universal Museums’ Declaration, the ElginMarbles and the Future of the Repatriation Movement. 29 Suffolk Transnational Law Review, p.315 (2005-2006) (Knox, 2006)
Kurtz, Michael J.: The Allied Struggle over Cultural Restitution, 1942-1947. 17 InternationalJournal of Cultural Property, p. 177 (2010) (Kurtz, 2010)
Mealy, Nate: Mediation’s Potential Role in International Cultural Property Disputes. 26 Ohio StateJournal on Dispute Resolution, p. 169 (2011) (Mealy, 2011)
Merryman, John Henry: A Licit International Trade in Cultural Objects. 4 International Journal ofCultural Property, p. 13 (1995) (Merryman, 1995)
Merryman, John Henry: Cultural Property Ethics. 7 International Journal of Cultural Property, p.21 (1998) (Merryman, 1998a)
Merryman, John Henry: Cultural Property Internationalism. 12 International Journal of CulturalProperty, p. 11 (2005) (Merryman, 2005)
Merryman, John Henry: The Free International Movement of Cultural Property. 31 New YorkUniversity Journal of International Law and Politics, p. 1 (1998-1999) (Merryman, 1998b)
Merryman, John Henry: The Public Interest in Cultural Property. 77 California Law Review, p.339 (1989) (Merryman, 1989)
Merryman, John Henry: The Retention of Cultural Property. 21 UC Davis Law Review, p. 477(1987-1988) (Merryman, 1988)
Merryman, John Henry: Thinking About the Elgin Marbles. 83 Michigan Law Review, p. 1881(1984-1985) (Merryman, 1985)
Merryman, John Henry: Two Ways of Thinking about Cultural Property. 80 The American Journalof International Law, p. 831 (1986) (Merryman, 1986)
Niedzielski-Eichner, Nora: Art Historians and Cultural Property Internationalism. 12 InternationalJournal of Cultural Property, p. 183 (2005) (Niedzielski-Eichner, 2005)
IX
Ounanian, Melineh S.: Of All the Things I’ve Lost, I Miss My Marbles the Most! An AlternativeApproach to the Epic Problem of the Elgin Marbles. 9 Cardozo Journal of Conflict Resolution, p.109 (2007-2008) (Ounanian, 2007)
Prott, Lyndel V.: The International Movement of Cultural Objects. 12 International Journal ofCultural Property, p. 225 (2005) (Prott, 2005)
Prott, Lyndel V. and O’Keefe, Patrick J.: ’Cultural Heritage’ or ‘Cultural Property’?. 1International Journal of Cultural Property, p. 308 (1992) (Prott & O’Keefe, 1992)
Rasulov, Akbar: From Apology to Utopia: The Structure of International Legal Argument. (Bookreview). 16 Law and Politics Book Review, p. 352 (2006) (Rasulov, 2006)
Reppas, Michael J. II: The Deflowering of the Parthenon: A Legal and Moral Analysis on Why the“Elgin Marbles” Must be Returned to Greece. 9 Fordham Intellectual Property, Media &Entertainment Law Journal, p. 911 (1998-1999) (Reppas, 1999)
Sandholtz, Wayne: Plunder, Restitution, and International Law. 17 International Journal of CulturalProperty, p. 147 (2010) (Sandholtz, 2010)
Shuart, Josh: Is All “Pharaoh” in Love and War? The British Museum’s Title to the Rosetta Stoneand the Sphinx’s Beard. 52 University of Kansas Law Review, p. 667 (2003-2004) (Shuart, 2004)
Shyllon, Folarin: The 16th Session of the UNESCO Intergovernmental Committee for Promoting theReturn of Cultural Property to Its Countries of Origin or Its Restitution in Case of IllicitAppropriation. 18 International Journal of Cultural Property, p. 429 (2011) (Shyllon, 2011)
Sljivic, Ana: Why Do You Think it’s Yours? An Exposition of the Jurisprudence Underlying theDebate Between Cultural Nationalism and Cultural Internationalism. 31 George WashingtonJournal of International Law and Economics, p. 393 (1997-1998) (Sljivic, 1998)
Vecco, Marilena: A definition of cultural heritage: From the tangible to the intangible. 11 Journalof Cultural Property, p. 321 (2010) (Vecco, 2010)
Walton, Kelly Diane: Leave No Stone Unturned: The Search for Art Stolen by the Nazis and theLegal Rules Governing the Restitution of Stolen Art. 9 Fordham Intellectual Property, Media &Entertainment Law Journal, p. 549 (1998-1999) (Walton, 1999)
Articles in Books:
Appiah, Kwame Anthony: Whose Culture is it? in Whose Culture? The Promise of Museums andthe Debate over Antiquities (Cuno, James, ed.), Princeton University Press, Princeton and Oxford,2009, 71-86 (Appiah, 2009)
Barkan, Elazar: Amending Historical Injustices: The Restitution of Cultural Property – AnOverview in Claiming the Stones, Naming the Bones: Cultural Property and the Negotiation of
X
National and Ethnic Identity, (Barkan, Elazar and Bush, Ronald eds.), Getty Publications, LosAngeles, 2002, 16-46 (Barkan, 2002)
Barringer, Tim: The South Kensington Museum and the colonial project in Colonialism and theObject: Empire, Material Culture and the Museum, (Barringer, Tim and Flynn, Tom, eds.),Routledge, London and New York, 1998, 11-27 (Barringer, 1998)
Cowney, Fiona and Bradney, Anthony: Socio-legal studies: A challenge to the doctrinal approachin Research Methods in Law (Watkins, Dawn and Burton, Mandy, eds.), Routledge, London andNew York, 2013, 34-54 (Cowney & Bradney, 2013)
Cuno, James: View from the Universal Museum in Imperialism, Art and Restitution, (Merryman,John Henry ed.), Cambridge University Press, Cambridge, 2006, 15-36 (Cuno, 2006)
Davison, Patricia: Museums and the re-shaping of memory in Heritage, Museums and Galleries: AnIntroductory Reader (Corsane, Gerard, ed.), Routledge, London and New York, 2005, 184-194(Davison, 2005)
Dominguez, Virginia R.: Invoking Culture: The Messy Side of “Cultural Politics” in The Politics ofCulture: Policy Perspectives for Individuals, Institutions, and Communities (Bradford, Gigi, Gary,Michael and Wallach, Glenn, eds.), The New Press, New York, 2000 20-37 (Dominguez, 2000)
Gerstenblith, Patty: Cultural Significance and the Kennewick Skeleton: Some Thoughts on theResolution of Cultural Heritage Disputes in Claiming the Stones, Naming the Bones: CulturalProperty and the Negotiation of National and Ethnic Identity, (Barkan, Elazar and Bush, Ronaldeds.), Getty Publications, Los Angeles, 2002, 162-197 (Gerstenblith, 2002)
Gould, Cecil: Trophy of Conquest in Law, Ethics and the Visual Arts, (Merryman, John Henry,Elsen, Albert E. and Urice, Stephen K., eds.), Kluwer Law International, The Netherlands, 5 th
edition, 2007, 4-6 (Gould, 2007)
Graham, Brian, Ashworth, Gregory John and Tunbridge, John E.: The uses and abuses of heritagein Heritage, Museums and Galleries: An Introductory Reader (Corsane, Gerard, ed.), Routledge,London and New York, 2005, 26-37 (Graham, Ashworth & Tunbridge, 2005)
Handler, Philip: Legal history in Research Methods in Law (Watkins, Dawn and Burton, Mandy,eds.), Routledge, London and New York, 2013, 85-99 (Handler, 2013)
Handler, Richard: On Having a Culture: Nationalism and the Preservation of Quebec’s Patrimoinein History of Anthropology, Volume 3: Objects and Others: Essays on Museums and MaterialCulture (Stocking, George W. Jr., ed.), The University of Wisconsin Press, Wisconsin, 1985, 192-217 (Handler, 1985)
Hart, Jonathan: Translating and Resisting Empire: Cultural Appropriation and Postcolonial Studiesin Borrowed Power: Essays on Cultural Appropriation (Ziff, Bruce and Rao, Pratima V., eds.),Rutgers University Press, New Brunswick, New Jersey, 1997, 137-168 (Hart, 1997)
XI
Hitchens, Christopher: The Elgin Marbles in The Parthenon Marbles: The Case for Reunification(Hitchens, Christopher, ed.), Verso, London, New York, 3rd edition, 2008, 17-106 (Hitchens,2008a)
Hitchens, Christopher: Foreword to the 1997 Edition in The Parthenon Marbles: The Case forReunification (Hitchens, Christopher, ed.), Verso, London, New York, 3rd edition, 2008, xix-xxiii(Hitchens, 2008b)
Hitchens, Christopher: Appendix 3: The Parthenon Gallery in the New Acropolis Museum in TheParthenon Marbles: The Case for Reunification (Hitchens, Christopher, ed.), Verso, London, NewYork, 3rd edition, 2008, 151-153 (Hitchens, 2008c)
Kajava, Mika: Kreikan merkitys Roomalle – ja päinvastoin in Kulttuuri antiikin maailmassa,(Kajava, Mika, et al. eds.), Kustannusosakeyhtiö Teos, Helsinki, 2009, 118-139 (Kajava, 2009)
Kekkonen, Jukka: Oikeudellisen muutoksen tutkimisesta – minun metodini in Minun metodini(Häyhä, Juha, ed.), Werner Söderström Lakitieto Oy, Helsinki, 1997, 131-150 (Kekkonen, 1997)
Kivistö, Sari & Riikonen, H.K.: Taiteiden asema antiikin aikana in Kulttuuri antiikin maailmassa,(Kajava, Mika, et al. eds.), Kustannusosakeyhtiö Teos, Helsinki, 2009, 346-374 (Kivistö &Riikonen, 2009)
Koskenniemi, Martti: Tyyli metodina in Minun metodini (Häyhä, Juha, ed.), Werner SöderströmLakitieto Oy, Helsinki, 1997, 173-188 (Koskenniemi, 1997)
Lumley, Robert: The debate on heritage reviewed in Heritage, Museums and Galleries: AnIntroductory Reader (Corsane, Gerard, ed.), Routledge, London and New York, 2005, 15-25(Lumley, 2005)
MacGregor, Neil: To Shape the Citizens of “That Great City, the World” in Whose Culture? ThePromise of Museums and the Debate over Antiquities (Cuno, James, ed.), Princeton UniversityPress, Princeton and Oxford, 2009, 39-54 (MacGregor, 2009)
Mackay Quynn, Dorothy: The Art Confiscations of the Napoléonic Wars in Law, Ethics and theVisual Arts, (Merryman, John Henry, Elsen, Albert E. and Urice, Stephen K., eds.), Kluwer LawInternational, The Netherlands, 5th edition, 2007, 6-9 (Mackay Quynn 2007)
Magnusson, Magnus: Introduction in The Return of Cultural Property (Greenfield, Jeannette),Cambridge University Press, Cambridge, 2007, 1-12 (Magnusson, 2007)
Merryman, John Henry: Introduction in Imperialism, Art and Restitution, (Merryman, John Henryed.), Cambridge University Press, Cambridge, 2006, 1-14 (Merryman, 2006a)
Merryman, John Henry: Whither the Elgin Marbles? in Imperialism, Art and Restitution(Merryman, John Henry, ed.), Cambridge University Press, Cambridge, 2006, 98-113 (Merryman,2006b)
Merryman, John Henry, Elsen, Albert E. and Urice, Stephen K.: German Art in Russian Museumsin Law, Ethics and the Visual Arts, (Merryman, John Henry, Elsen, Albert E. and Urice, Stephen K.,
XII
eds.), Kluwer Law International, The Netherlands, 5th edition, 2007, 63-65 (Merryman, Elsen &Urice, 2007a)
Merryman, John Henry, Elsen, Albert E. and Urice, Stephen K.: The Bust of Nefertiti: Partage inLaw, Ethics and the Visual Arts, (Merryman, John Henry, Elsen, Albert E. and Urice, Stephen K.,eds.), Kluwer Law International, The Netherlands, 5th edition, 2007, 414-415 (Merryman, Elsen &Urice, 2007b)
Merryman, John Henry, Elsen, Albert E. and Urice, Stephen K.: The Einsatzstab Rosenberg in Law,Ethics and the Visual Arts, (Merryman, John Henry, Elsen, Albert E. and Urice, Stephen K., eds.),Kluwer Law International, The Netherlands, 5th edition, 2007, 16 (Merryman, Elsen & Urice,2007c)
Mifsud Bonnici, Ugo: The human right to cultural heritage – The Faro Convention’s contributionsto the recognition and safeguarding of this human right in Heritage and Beyond (Therond, Danieland Trigona, Anna, eds.), Council of Europe Publishing, Strasbourg, 2009, 53-58 (Mifsud Bonnici,2009)
Minkkinen, Panu: Critical legal ‘method’ as attitude in Research Methods in Law (Watkins, Dawnand Burton, Mandy, eds.), Routledge, London and New York, 2013, 119-138 (Minkkinen, 2013)
Owsley, Douglas W. and Jantz, Richard L.: Kennewick Man – A Kin? Too Distant in Claiming theStones, Naming the Bones: Cultural Property and the Negotiation of National and Ethnic Identity,(Barkan, Elazar and Bush, Ronald eds.), Getty Publications, Los Angeles, 2002, 201-223 (Owsley& Jantz, 2002)
Pieterse, Jan Nederveen: Multiculturalism and museums in Heritage, Museums and Galleries: AnIntroductory Reader (Corsane, Gerard, ed.), Routledge, London and New York, 2005, 163-183(Pieterse, 2005)
Siehr, Kurt G.: The Beautiful One Has Come – To Return: The Return of the Bust of Nefertiti fromBerlin to Cairo in Imperialism, Art and Restitution (Merryman, John Henry, ed.), CambridgeUniversity Press, Cambridge, 2006, 114-134 (Siehr, 2006)
St Clair, William: Imperial Appropriations of the Parthenon in Imperialism, Art and Restitution(Merryman, John Henry, ed.), Cambridge University Press, Cambridge, 2006, 65-97 (St Clair,2006)
Urice, Stephen K.: The Beautiful One Has Come – To Stay in Imperialism, Art and Restitution(Merryman, John Henry, ed.), Cambridge University Press, Cambridge, 2006, 135-166 (Urice,2006)
Warren, Karen J.: Commentary: Part III in The Ethics of Collecting Cultural Property (MauchMessenger, Phyllis ed.), University of New Mexico Press, Albuquerque. 2nd edition, 1999, 209-214(Warren, 1999a)
XIII
Warren, Karen J.: A Philosophical Perspective on the Ethics and Resolution of Cultural PropertyIssues in The Ethics of Collecting Cultural Property (Mauch Messenger, Phyllis ed.), University ofNew Mexico Press, Albuquerque. 2nd edition, 1999, 1-25 (Warren, 1999b)
Webb, Timothy: Appropriating the Stones: The “Elgin Marbles” and English National Taste inClaiming the Stones, Naming the Bones: Cultural Property and the Negotiation of National andEthnic Identity, (Barkan, Elazar and Bush, Ronald eds.), Getty Publications, Los Angeles, 2002, 51-96 (Webb, 2002)
Wilson, David: Return and Restitution: A Museum Perspective in Who Owns the Past?, (McBryde,Isabel ed.) Oxford University Press, Oxford, Auckland, New York, 1985, 99-106 (Wilson, 1985)
Online sources:
Jokilehto, J.: Definition of Cultural Heritage – References to Documents in History (ICCROMWorking Group ‘Heritage and Society’).<http://cif.icomos.org/pdf_docs/Documents%20on%20line/Heritage%20definitions.pdf> Lastaccessed 5 May 2014. (Jokilehto, 2005)
BBC News: Nazi looted art 'found in Munich' - German media.<http://www.bbc.com/news/world-europe-24794970/> Last accessed 5 May 2014 (BBC News:Nazi looted art)
British Museum – Firman (letter of permission) for Lord Elgin.<http://www.britishmuseum.org/explore/highlights/highlight_objects/gr/f/firman_-_letter_of_permission.aspx> Last accessed 5 May 2014 (British Museum: Firman for Elgin)
British Museum – Translation of Lord Elgin’s Firman.<http://www.britishmuseum.org/explore/highlights/articles/t/translation_of_elgins_firman.aspx>Last accessed 5 May 2014 (British Museum: Firman translation)
Missing? Legal and Practical Measures Against Illicit Trafficking in Cultural Property - UNESCOHandbook.< http://unesdoc.unesco.org/images/0014/001461/146118e.pdf> Last accessed 5 May 2014(UNESCO Handbook)
UNESCO: Illicit Traffic of Cultural Property.<http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/> Lastaccessed 6 May 2014 (UNESCO: Illicit Traffic)
Other:
Arhippainen, Max: Kulttuurin pelastajia vai ryöväreitä?. Suomen Kuvalehti 29/2009, p.56(Arhippainen, 2009)
XIV
Abbreviations
FTS Finnish Treaty Series
ICOMOS International Council on Monuments and Sites
UN United Nations
UNESCO United Nations Educational, Scientific and Cultural Organization
UNTS United Nations Treaty Series
1
1. Introduction
Ever since I first came across the subject of cultural property in a course about law and
history politics, I have discovered a world that has only come to seem more complex the
further I have studied it. Earlier, I had known nothing about the complexities of the nature
of the collections in the great “universal museums”1, and about what a heated debate there
was about the claims for restitution. After having studied the subject further, there was
something in the back of my mind about the debate that bothered me, but I could never
quite pinpoint what it was. Something about how the debate never seemed to move
forward, and how the different sides of the argument were defined and how they argued in
reality made it seem to me that the debate did not play out in the same way as the writers
made it seem. It also puzzled me that I felt that, even despite appearing to be at the
different ends of the spectrum, the different sides often argued using very similar
arguments. Then a few years later, while contemplating the subject of my Master’s thesis, I
was taking a course on international law and hearing about Martti Koskenniemi’s view
about the indeterminacy of international law. According to it, international law has an
argumentation pattern where each party takes positions opposing one another, but during
the course of the discourse each party inevitably flips around the other’s argument and uses
it for their own position and vice versa, theoretically ad infinitum – and suddenly it struck
me how incredibly similar this was to the way the cultural property debate functioned. I
knew I had found an angle to the thesis I had previously been missing.
Cultural property has come to have an immense value to people almost
everywhere. Everyone involved in the debate – and almost everyone at least in the Western
world – “have agreed to a worldview in which culture has come to be represented as and
by ‘things.’”2 In recent years also the intangible expressions of culture have come to be
valued and protected more, but in the large scale it seems that tangible heritage is still seen
as the most important manifestation of a culture.
1 Nor had I heard of the term “universal museum”.2 Handler, 1985, p. 215
2
This is also why the restitution of cultural property has become such a hot
topic in recent years, even decades. Nations feel that they have a right to the cultural
property created by their predecessors, that it is something that is inherently theirs in both a
legal-moral sense and a more cultural sense. That another state displays (and gains, for
example, the advantages of tourism from) something that feels so fundamental to the first
country, it creates a feeling of being wronged. The debate is heated further by the demands
of the postcolonial nations hoping to claim some redress for colonialism, a time when the
colonial powers heavily increased their collections of cultural objects from around the
world. At the same time, the nations holding the objects feel they have the law on their
side, and feel that not only are their rights being threatened just as much, but also that
morally the claims from the source country are not any more justified than the holding
country’s right to the objects.
There has, however, been a rising trend of restitution for several decades
now, perhaps even rising since the 90’s. The most important change happened in 1970 with
the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property, which changed the international
legal system to be more biased towards restitution in most cases – though only those that
have come to being after the Convention. The trend of restitution is related to the general
public view having slowly but steadily shifted in favor of the restitution movement.
However, the trend has also meant that those – usually institutions – who are in possession
of cultural property from other nations, have on occasion felt the need to dig their defenses
even deeper, perhaps feeling overly pressured at times for restitution even when there
really is no cause, all the while certain people especially in source nations have taken an
overly offensive stance towards these institutions holding the objects, causing friction and
impairing fruitful collaborations. It is, in other words, important that the discussion stays in
good spirit.
Cultural property also touches on every nation. National museums house
objects of (cultural) importance from the nations’ past, and everywhere there are
collections, monuments and other objects celebrating the historical, cultural and artistic
achievements of the peoples. And although not all nations have been subject to the removal
of their cultural property – or been the one removing them – this subject, too, can have
effects in surprising places. For example, in Finland some years ago, a collection of copies
from the Russian Tsarist government mainly from the 19th century was rediscovered in the
3
Helsinki University Library. This collection included also copies of many Hebrew
language books, several of which had been lost in the many purges against the Jewish
populations especially in World War II.3 In addition, not all dislocation of cultural property
happens outside national borders. Even a country like Finland, whose cultural property has
mainly been without interest internationally, has had its share of (systematic) internal
removals of cultural property by the government, especially in the region of Karelia
(though some of it was also acquired on the side of the Soviet Union).4
Because there is so much interest, meaning and importance invested in
cultural property and its allocation, it is no surprise that there are also ways in which it is
used for historical-political gains. This is something that is important to keep in mind in the
discussions, and it is quite difficult to be fully separate from. Cultural property is also
strongly ambiguous in its meaning, so that while for one person it means something purely
aesthetic and artistic (or has no meaning at all), or perhaps celebrates the achievements and
unity of humanity as a whole, to another person the same piece or its allocation might be a
sign of imperialist attitudes and a display of perceived superiority.
There are countless angles one could approach the cultural property issues
from, and here I can only scratch the surface. One important angle is seeing cultural
property or heritage as a human right5 (or a community right); one could approach the
problems from ethics;6 it is also possible to look at it from a point of view of economics
and international (art) trade;7 or as a minority issue8. In addition, these are issues that touch
all the corners of the world, and people in a myriad of different cultures, ways of life and
social situations – and usually all of them have a different understanding of what it is that
makes cultural property important, and what cultural property means in the first place.
That is also why it is vital to delimit one’s approach to the subject. In this
paper I am only focusing on cultural property (as defined in chapter two) as opposed to
cultural heritage in general, and in cultural property I have left out, for example, human
3 Greenfield, 2007, p. 2204 Arhippainen, 2009, p. 575 See for example Alderman, 2011; Mifsud Bonnici, 20096 See for example Merryman, 1998a7 This is an angle that many participants in the discussion take. See for example Merryman, 1998b;Merryman, 1995;8 This relates especially to indigenous peoples, such as the Native Americans and the Aborigines of Oceania.See for example Carpenter, Katyal & Riley, 2010
4
remains9 and archaeological material and focus instead on works of art – including
sculptures and paintings, but also to some extent books and other manuscripts. Both of the
aforementioned types of cultural property that were left out of this study would bring
additional issues that could not adequately be considered in the space available here. In
addition, geographically I have limited myself to European cases – either with objects that
originate from Europe, or objects that are from outside of Europe but are now situated in a
European state (that has been responsible for the object’s extraction from the state of
origin). Finally, I have (aside from some general considerations) left out items in private
ownership and focus purely on objects currently located in so-called universal museums.
This, again, helps focus more on the argumentation without having to bring in lengthy
consideration regarding national and international regulations on private property, the rules
on bona fides ownership and other such matters that would require a study of their own.
It seems that focused academic research of cultural property (especially the
cultural property debate) is quite a recent phenomenon – only in very recent decades has
there been actual methodical research put into the fundamentals of the topic. Earlier, it has
usually been more purely a question of general and academic debate, but not proper
scientific research. This is also why in my study there are several ambiguities and general
considerations I feel I need to address before I can focus on the main questions of research.
1.1. Research questions and methodology
As something that touches on the lives of most people in the world, cultural property is
certainly something of value and worth researching. It is also an area that has many
ambiguities and differing values, which means that a lot more research is needed. I also
feel that there is some confusion as to the nature of the discussion surrounding it. It seems
that many of the participants in the debate do not understand the indefinite nature of the
discussion and the rhetoric in it. Yet it is vital to understand the way the discourse works in
order to get results from it.
In the thesis I study the debate surrounding the demands for restitution of
cultural property. There are several cases where the debate has been going strong for
decades, or even, in some extreme cases, centuries. The fundamental goal of the study is to
9 This especially is an area of cultural property best explored separately, as there are many rights andproblems involved that are not relevant in other types of cultural property. On human remains as culturalproperty, see, for example, on the so-called Kennewick Man, Owsley & Jantz, 2002; Gerstenblith, 2002
5
find out why it is that these debates have been able to continue for so long without any
conclusion or results. This will be done by studying the structure and comparing and
analyzing the rhetoric involved in the argumentation between cases, and then applying the
results to the theory of international law as a language as presented by Martti
Koskenniemi. There are also certain contradictions and ambiguities involved in central
concepts of the field, and I will attempt to clarify some of these concepts, as well as
whether the different approaches to the allocation of cultural property are really as separate
as they seem.
Is this a legal historical study? According to Kekkonen, the essence of legal
historical research is in the analysis of legal change.10 Although actual law does not take a
central stage in this study, I do not consider it a non-legal study. It deals with the structure
and rhetoric of a debate that has participants from all aspects of science and the general
public. Yet, at the same time, at its core are undeniably legal issues. The allocation of
cultural property, like any property – as cultural property is, for the most part, currently
treated – is a legal issue where the law needs to be considered even if it is not directly
addressed. A good deal of the debate has also to do with reasons to potentially supersede
the law – especially morality. And such a consideration needs to take the law into account.
It also has a great deal to do with law and legal history in that it is a matter of power, which
naturally has important legal implications. The ‘history’ part in ‘legal history’ also plays an
important part in this study, as not only is the restoration argumentation always, in part,
inescapably historical, I feel it is necessary to include purely historical considerations in
the study to better comprehend the discourse as it is now, not only as a debate about the
best allocation of the objects for their sake but also as a debate about historical (potential)
injustice and its restoration. That is why this study does qualify as legal historical study.
The analysis of legal change is in relation to the development of the concept of cultural
property, as well as especially in the analysis of (the lack of?) change in the cultural
property restoration debate, although in that sense – as analysis of a self-perpetuating
discourse – this approach cannot be carried throughout the text.
Due to the nature of the thesis and its subject, it does not – and cannot –
systematically follow usual legal historical methodology. Obviously this study does not fit
among the purely legal methods such as doctrinal research – even if fitted to a legal-
10 Kekkonen, 1997, p. 131
6
historical approach – as it deals very little with the functioning of laws or the justice
system. For this reason, the study is not ‘internal legal history’ – that is, “the study of legal
doctrine and its processes.”11
So, it seems the study is rather ‘external legal history’, the study of law in
context.12 However, the external legal history view is very inclusive and cannot on its own
offer any methodology. Hence, further narrowing is needed, this time in the division of
“law &” and “law as ...”, as explained by Fisk and Gordon.13 We can see that the study
does not fit the “law &” approach, first and foremost because, again, its primary target of
study is not, in itself, law, but rather the debate surrounding it. In addition, the “law &”
approach has a tendency to perpetuate “the idea that, even though law is situated in society,
law is distinct from society and can, or must, be studied in relation to it.”14 In the view of
this study, the law is merely one aspect of the discourse. The “law as ...” view of legal
history is, however, more suitable, albeit still slightly problematic. In the view of this
study, the view of law is mainly “law as part (or result) of the cultural property debate”.
This thesis does not, however, offer any conclusions from the nature of law itself.
But this study also includes elements that are not fundamentally legal-
historical. Those aspects of the study could be included in the category of ‘socio-legal
studies’ – if the term is interpreted in its widest meaning where it includes an extremely
wide range of approaches from very empirically and social science oriented approaches to
feminist and critical legal studies, and an equally wide range of subjects from purely
legalistic studies to the views regarding law in entertainment.15 In this sense, I believe this
study fits well, as it places a heavy emphasis on the view of law as a part of a larger
discourse in society overall. However, this way the socio-legal studies can hardly be called
methodology, but rather a loose collection of approaches to studying legally-oriented,
societal subjects. If the term is defined more narrowly, closer to pure social studies, the
thesis falls off the definition, as it does not follow the more empirically oriented
methodology in social sciences.16 In From Apology to Utopia, Koskenniemi speaks of
regressive analysis, investigating discourse by going backwards to its deep-structures; a
deconstructive method, “a general outlook towards analysing intellectual operations
11 Handler, 2013, p. 8612 Id., p. 8613 Fisk & Gordon, 2011, pp. 519-52714Id., p. 52015 Cowney & Bradney, 2013, pp. 35-4216 Id., pp. 35-36
7
through which the social world appears to us in the way it does;”17 and holism, discussing
theory and doctrine as a whole.18 As my thesis relies on Koskenniemi’s work in studying in
a similar manner the debate surrounding cultural property, all these depictions necessarily
also fit my study – albeit that Koskenniemi has already paved a lot of the way. Though
such an approach may be eclectic, I feel that it does not mean that the results of the study
are any weaker. Such a style lacking a uniform method (or “style as method”) is far from
unheard of, supported especially in critical legal studies,19 including Koskenniemi – not to
mention that some have rejected the desirability of method altogether.20
1.2. Structure
There are several complicated and ambiguous aspects in key terms in the cultural property
discussion, and there is no one universal definition of them available. This is why, even
though a precise definition is not possible, I will begin (after this introduction) in chapter
two by explaining how I use the terms ‘cultural heritage’ and ‘cultural property’. This is
followed by an explanation of two fundamental approaches towards cultural property:
‘cultural nationalism’ and ‘cultural internationalism’. In some ways, the search to define all
these terms will also continue throughout the thesis.
In chapter three I will look into the birth and development of cultural
property and the attitudes toward it in Europe. I will do this especially through the lens of
the history of plunder of art, as many of the issues in the cultural property field are the
result of the thousands of years of plunder, especially during warfare. During this chapter, I
aim to trace the roots of the idea of cultural property and to better understand the idea of it
and why we care about it, and to understand how the current situation of globally scattered
cultural objects has come to be. The chapter will focus especially on moments in history
that, when contrasted to one another, reveal change in attitudes towards the central issues
and the way the different themes are viewed. The history of cultural property is not a
history of sudden changes and great individuals who shape the concepts and ideas of the
field. Instead, the changes are gradual, visible often only by comparing attitudes on a
longer timeframe, and there are perhaps even less than a handful people who can be said to
have individually had a great impact on the attitudes towards the allocation of cultural
17 Koskenniemi, 2005, p. 618 Id., pp. 6-719 See for example Koskenniemi, 1997; and Minkkinen, 201320 Feyerabend, 1975
8
property, or who have actively and loudly campaigned for changes in attitude. Rather, the
changes have appeared side by side with gradual changes in societal attitudes and morality
on a large scale.
The fourth chapter focuses on the current debate. In it, I will attempt to
specify the most common and most important arguments in the cultural property debate,
and analyze the rhetoric as they appear in the use of these arguments. This will be done
through focusing on certain high-profile cases that exemplify key elements of the different
arguments and contrast the many-sidedness that these elements may have. Especially the
Parthenon Sculptures case will be prominently featured due to both its massive influence
as the most debated restitution case and its extremely multifaceted nature.
In chapter five, I will continue to explore certain themes that will be alluded
to in the previous chapter, regarding cultural property as something beyond self-contained
objects that are valued because of their inherent traits, but rather, first, as a utility for
history politics (or memory politics), and second as a way of continuing traditions of
imperialism. The chapter aims to show that although it is often the purported aim of those
in the debate to see and have cultural property as something pure and apolitical, in truth it
is impossible to separate cultural property from politics.
Chapter six will then continue to connect these previously raised points and
compare them to the views of international law of Martti Koskenniemi as presented in his
work From Apology to Utopia. First, I will briefly explain the central points of
Koskenniemi’s theory as it relates to international law, then in the second part I will apply
the theory to the debate surrounding cultural property. I will attempt to show that, in fact,
the debate surrounding the restitution of cultural property follows in great deal the same
patterns as international law discourse, and attempt to find reasons for it.
After this, chapter seven will present some alternative approaches to cultural
property in either its definition or attitudes towards it, as well as contemplating on their
possible impacts in regards to breaking the apparently endless cycle of debate in the field
now (without making assumptions on whether such a cycle is a negative thing or not). In
the final chapter I will present some concluding remarks on the paper.
9
2. Definitions
2.1. Cultural Heritage and Cultural Property
2.1.1. Cultural Heritage
We often see the terms cultural “property”, “heritage”, “goods” and “objects” interchanged.There is no single, universal definition for any of these terms. Although in commonparlance they generally refer to the same things, their exact definition and legal regime(alienability, exportability etc.) are to be sought in national legislation, or in internationalconventions.
Therefore such definitions and legal regimes vary from State legislation to State legislation,or from treaty (international convention) to treaty. Generally, the word "property" has alegal background (linked to "ownership"), while "heritage" stresses conservation andtransfer from generation to generation. No particular culture-oriented connotationcharacterizes "good" and "object".21
Cultural heritage and cultural property are not simple terms. There are no exact definitions
of them in law or in literature, but rather more general descriptions that leave a lot open. It
could be said that there are as many definitions of the terms as there are people talking
about them. According to John Henry Merryman, “[a]ny attempt at a definition will reveal
that the cultural property category is heterogenous.”22 In fact, perhaps because of its
multifaceted nature, especially the term ‘cultural heritage’ often goes undefined.
Cultural heritage and cultural property are on occasion used quite
synonymously (especially in the early stages of the development of the terms – in the first
half of the 20th century – as well as in common parlance), but in reality there is quite an
important difference between them. In the most common sense of the terms, cultural
property should be seen as a subcategory of cultural heritage. In short, cultural heritage
includes an extremely wide variety of matters, both tangible and intangible, that are
important to humanity, while cultural property is more specifically culturally important
items. In the original formulations of the term, ‘cultural heritage’ was not yet really
separated from ‘cultural property’, and included what we now mainly understand as
specifically cultural property – that is, physical objects that have great significance to
human culture23. The idea of cultural heritage has, however, constantly grown over the
21 UNESCO Handbook, p. 422 Merryman, 2005, p. 1123 I use the term ’human culture’ because in the formulations of most of the international conventions, theimportance of the subject can be seen as relating to either local cultures, or of a more general view of a
10
decades, first including different types of physical objects, then expanding to intangible
heritage, such as certain types of cultural institutions and traditions, as well as natural
landscapes.24
To try to explain cultural heritage and cultural property (at least in a legal
sense), it is probably best to begin by looking at different international conventions and
how the ideas have developed in them. Interestingly, although already the 1954
Convention for the Protection of Cultural Property During Armed Conflict (Hague 1954)
refers to ‘cultural heritage’, the term is not defined in a legal document until 1964, in the
International Charter on the Conservation and Restoration of Sites (Venice, 1964) – while
the term ‘cultural property’ had been defined in documents decades earlier. In defining
cultural heritage, Venice 1964 has the following to say:
Imbued with a message from the past, the historic monuments of generations of peopleremain to the present day as living witnesses to their age-old traditions. People arebecoming more and more conscious of the unity of human values and regard ancientmonuments as a common heritage. The common responsibility to safeguard them for futuregenerations is recognized. It is our duty to hand them on in the full richness of theirauthenticity. ...
Article 1.
The concept of a historic monument embraces not only the single architectural work butalso the urban or rural setting in which is found the evidence of a particular civilization, asignificant development or a historic event. This applies not only to great works of art butalso to more modest works of the past which have acquired cultural significance with thepassing of time. ...
Article 3.
The intention in conserving and restoring monuments is to safeguard them no less as worksof art than as historical evidence.25
Although these passages still convey a much more narrow view of cultural heritage than
today, focusing on monuments, they still portray several key points in cultural heritage.
Cultural heritage is about the traditions of culture and identity of the peoples. The notion of
“unity of human values” (though no doubt questionable) is also important, portraying the
importance of cultural heritage to humanity as a whole, not just to those whose native
heritage it is (which is also explicitly stated in Hague 1954, saying it is “of great
common culture of humanity. It is never explicitly said whether there is a preference over particular culturesor humanity in general.24 Vecco, 2010, pp. 321-32425 Venice 1964
11
importance for all peoples of the world”26). In Article 1, it is noted that of cultural
importance aren’t only the greatest pieces of art, but also more modest ones, that hold other
types of significance. As said by Marilena Vecco: “[i]n this regards, mention was made of
value, evaluation, evidence that are of artistic and historic interest, cultural interest and
interest of cultural property.”27 Article 3 expands on the values that cultural heritage holds
– it is not only the artistic values that make cultural heritage important, but the way the
objects act as reminders of history and sources of historical knowledge.28 There is more to
cultural heritage than meets the eye.
Less than a decade after the Venice Charter, in 1972, the idea and importance
of cultural heritage would be solidified in the Convention Concerning the World Cultural
and Natural Heritage (World Heritage Convention). The Convention does not include
cultural property items in it, rather focusing on more immovable things – but still expands
the category into the context and surroundings of the subject at hand. Importantly, the
Charter parallels cultural heritage with natural landscapes (“natural heritage”, as the name
says), revealing the gradual shift towards the intangible aspects of heritage as we
understand it today.
In the following decades, the idea of cultural heritage would further develop
in international documents, such as the 1975 Declaration of Amsterdam: “[a]part from its
priceless cultural value, Europe's architectural heritage gives to her peoples the
consciousness of their common history and common future. Its preservation is, therefore, a
matter of vital importance”29, which is a further turn from not only emphasizing the
scientific and aesthetic values that the heritage represents, but also the cultural identity and
consciousness of the people. This social aspect culminated in the Burra Charter in 1979,
which explicitly includes not only the “aesthetic, historic, scientific” values, but also the
“social value for past, present or future generations.”30 It also moves further away from
simply listing the subjects of protection (as cultural heritage law is in great deal about the
26 Hague 1954, preamble27 Vecco, 2010, p. 32228 In reality, however, it is not quite as simple as it would seem, as there is a great deal of politics involved inwhat these different heritage objects represent and which of them are allowed to survive in the first place.This is discussed further in chapter 5. In addition, David Lowenthal has quite persuasively argued that, infact, heritage is the opposite of history (see in general Lowenthal, 1998).29 Jokilehto, 2005, p. 25, quoting Amsterdam Declaration, Congress on the European Architectural Heritage,Amsterdam, 21-25 October 197530 Burra 1979, art. 1
12
protection of cultural heritage) and towards a system of a more subjective (though
communal) recognition.31
Finally, the most recent inclusion into cultural heritage came in the
Convention in the Safeguarding of Intangible Cultural Heritage (UNESCO 2003). As the
name suggests, this convention expanded the protection of cultural heritage to not only
tangible subjects, such as monuments and landscapes, but also the intangible aspects of
culture:For the purposes of this Convention,
1. The “intangible cultural heritage” means the practices, representations, expressions,knowledge, skills – as well as the instruments, objects, artefacts and cultural spacesassociated therewith – that communities, groups and, in some cases, individuals recognizeas part of their cultural heritage. This intangible cultural heritage, transmitted fromgeneration to generation, is constantly recreated by communities and groups in response totheir environment, their interaction with nature and their history, and provides them with asense of identity and continuity, thus promoting respect for cultural diversity and humancreativity...32
This inclusion of intangible heritage was vital because of the limited importance on the
material heritage in many cultures. The earlier focus on material (or even monumental)
heritage was notably Eurocentric. In countries like Japan, the whole basis of the notion of
heritage is first and foremost immaterial.33 In addition to purely intangible tradition, even
the attitude to monuments is very different. According to Marilena Vecco, for example for
the Japanese the interest in the material is minimal, but rather they are interested in the
knowledge imbued in the object’s creation:
The Japanese temple of Ise, the greatest of the temples of the Shinto religion, is made ofwood and has completely preserved all its perpetuity, thanks to an identical and integralrenewal process. Every 20 years, that is, generation after generation, the temple has beencompletely reconstructed for more than twelve centuries. The temple remains the same,using the same type of wood but it is continually renewed without undergoing any materialor spiritual changes.
This approach depends on the cyclic vision of history, characteristic oforiental civilisations, which allows a sort of reversibility of time. While the westernphilosophical approach as regards conservation manifests itself in the preservation of thehistoric monument, the oriental one tries to use the monuments to preserve the very spiritthey represent.34
31 Vecco, 2010, p. 32332 Paris 2003, art. 233 Vecco, 2010, p. 324; Harrison, 2013, p. 9534 Id., p. 324
13
All in all, it is clear that the definition of ‘heritage’ is constantly evolving and spreading
into new types of representations. This means that it is also very difficult, if not impossible,
to define comprehensively beforehand, but is rather a constant process of re-evaluation and
reinvention. In addition, the definition of heritage must take into account not just the
European view, but also the many different ideas of culture globally, that often differ
greatly from those in the Western view.35 Of course, the more inclusive the definition is to
be, the vaguer and less helpful it also becomes.
2.1.2. Cultural Property
The terms ‘cultural property’ and ‘cultural heritage’ both appeared in international
documents for the first time in the Hague 1954 convention, though only cultural property
was given a separate definition. It was defined as “movable or immovable property of great
importance to the cultural heritage of every people...”36 and continues with a list of
examples such as monuments, archaeological sites, works of art, books and so forth.37
Arguably the most important convention in the field, the 1970 UNESCO
Convention on the Means of Prohibiting Illicit Import, Export and Transfer of Ownership
of Cultural Property (UNESCO 1970) was more specific in its definition of cultural
property. It also brought the important aspect of each state defining for themselves which
items belong to their cultural property, as long as they fit to the wide range of categories
set in the article. These categories include, for example, all the traditional types of works of
art, objects of historical interest and archaeological material, but also archives, collections
or samples of biological or other such scientific interest. 38 In the convention, one can also
see the emphasis on ‘property’, which further differentiates the idea of cultural property
from cultural heritage – it is not only that physical things are cultural property, they really
are the property of someone or something.
Many international documents follow among very similar lines. However, the
1976 UNESCO Recommendation Concerning the International Exchange of Cultural
Property has a more descriptive definition of cultural property that attempts to describe
more the spirit of the subject. It also leaves the final definition to the states: “'cultural
35 Id., p. 32436 Hague 1954, art. 137 Id.; on developments before Hague 1954, see Jokilehto, 2005, pp. 4-1538 UNESCO 1970, art. 1
14
property' shall be taken to mean items which are the expression and testimony of human
creation and of the evolution of nature which, in the opinion of the competent bodies in
individual States, are, or may be, of historical, artistic, scientific or technical value and
interest, including items in the following categories...”39 following with a list less detailed
than the one in the 1970 UNESCO convention (which is exhaustive, instead of exemplary).
2.1.3. Non-legal Definitions
Finally, the way cultural property and cultural heritage are used in academic discussion
have their own nuances when compared to the international documents. For example,
several writers have emphasized the rhetorical differences in the terms ‘heritage’ and
‘property’: “[i]n the debate over cultural properties, the language we use reflects our
conceptions of the main issues in that debate and sets into place the sorts of remedies that
are taken to be relevant to resolving that debate.”40 In this approach, the relationship
between cultural heritage and cultural property is not the same as in the legal texts, but
rather they usually are seen as overlapping, competing terms, the difference being in the
way they are addressed. In such a case, it seems ‘intangible cultural heritage’ is a different
category, with ‘cultural heritage’ its tangible counterpart, though it is rarely clearly
defined. As Lyndel V. Prott says: “cultural property, in my view, necessarily carries with
the phrase a whole baggage of associations and implications, in particular, the view in
common law ... that property and ownership rights clearly authorize exploitation,
alienation ... and exclusion of others from access – all elements that, in modern heritage
law, may well be restricted”41 and argues instead for the use of the term ‘heritage’. So, in
short, the term ‘cultural property’ shows the objects being seen as a category of property
alongside others, while ‘cultural heritage’ emphasizes the way the items are passed on
through generations as something external to the view of property rights. Heritage is also
more culturally inclusive, a global term, while cultural property has a distinctly Western
connotation of the idea of property.42
It is also important to realize that the debate is approached from many
different (more or less scientific) angles – which may not always be adequately separated
39 UNESCO 1976, art. 140 Warren, 1999b, p. 1441 Prott, 2005, p. 22642 Prott, O’Keefe, 1992, pp. 309-312
15
from each other, but which bear important effect on the way the entire problem is
understood and attempted to be resolved. As said by Karen J. Warren:
In important ways, the language people use reflects their conception of themselves andtheir world. If the language used is primarily the language of law, the conception of whatcounts as the relevant issues in a dispute will tend to be given in terms of what the lawpermits or requires. If the language used is primarily the language of morality, the relevantissues in a dispute will tend to be viewed as normative moral issues, that is, issues of rightand wrong, moral rules and responsibilities, moral virtues and vices. And if the languageused is primarily what some philosophers (e.g. the later Wittgenstein) refer to as “ordinarylanguage,” or as what others might refer to as “common sense,” then the legal and ethicalissues in a dispute will tend to be viewed as relevant to the extent that they do or do not getat what ordinary language or common sense dictates.43
All the different languages discussed in the passage above are ways in which the debate in
cultural property is often approached, though they are not, by far, the only approaches, and
they each lean towards their own usage of ‘cultural property’ and ‘cultural heritage’. Often,
‘cultural property’ is strictly legal terminology.44 Because the terms have such ambiguous
meanings both in different approaches and in subjective terminology, it is important to
separate the different approaches from each other, and this is also why “it is important that
every scholar spells out his own usage”45.
Although what has been described above is the generally accepted view, this
has not prevented slightly varying or even completely alternative views from also
emerging (and, as was suggested above, it seems everyone has their own perspective on the
finer details). In addition, there have been many suggestions presented for alternative
approaches towards these matters to fix certain issues that arise from the traditional views
of cultural heritage and property. Some of these will be discussed later, in chapter 7. As for
a strict definition, as suggested by Tatiana Flessas, “[t]he search for any definition, much
less a definition that could include all kinds of claims regarding ‘cultural property’, may be
mistaken.”46 Although there are countless attempts at explaining cultural property in a way
that would settle the question in a satisfactory way, “[t]he seemingly exhaustive legal
definitions are the location of gaps, paradoxes, inconsistent values, and sudden switches of
focus.”47 Flessas suggests, instead, that the true essence of cultural property is not in any
definition of the object (in fact the object itself can be quite meaningless), but rather in
43 Warren, 1999a, p. 20944 Prott, O’Keefe, 1992, p. 31945 Prott, 2005, p. 22646 Flessas, 2003, p. 109547 Id., p. 1095
16
certain structures (of thinking) that attach to the object meaning about “truths” regarding,
for example, culture, and life overall – though in a way that is never fully satisfactory, and
that always leaves the observer looking for something more.48
In this text, I use ‘cultural property’ in what I believe to be the most common sense – as a
subcategory of ‘cultural heritage’ which includes the tangible heritage, while ‘cultural
heritage’ includes also the intangibles as a very open category. I will, however, often prefer
to use the term ‘cultural object’ for much the same reasons as Ana Filipa Vrdoljak, who
writes that “[t]he term ‘cultural property’ places emphasis on the property law aspects of
cultural expressions.”49 However, although I am generally speaking about physical objects,
for me this term also holds the possibility for a more loose interpretation of the subject, for
example as a collection or theoretically as something intangible. Finally, although some
recognize the terms as being value-loaded, for me terms like ‘restitution’ are primarily
neutral, and much like Vrdoljak, I will use them interchangeably. I will, however, avoid
such terms as ‘repatriation’ because it is a term very easily seen as making a statement on
its own.
2.2. Cultural Internationalism & Cultural Nationalism
Cultural nationalism and cultural internationalism are terms developed by John Henry
Merryman in his 1985 article Thinking about the Elgin Marbles,50 which defines different
approaches to the issue of the correct location of cultural property. According to him, there
are two different attitudes that people take in cultural property. First is what he calls
“cultural nationalism”, the idea that cultural property belongs in the nation of origin. The
other is “cultural internationalism”, the idea that cultural property is the property of all
mankind and its allocation should be decided by certain more universal principles.51 This
is, of course, only a rough division of the different actors in the debate – but it is one that
has been for the most part accepted as the two primary categories, even though many –
including Merryman himself – have since supplemented it with finer categories.52
48 Id., passim. Flessas’ views are further explored in chapter 7.49 Vrdoljak, 2008, p. 750 Merryman, 1985. It is good to note that Merryman himself supports the cultural internationalist view.51 Id., pp. 1910-192152 See Merryman, 1998b, pp. 9-13; and for example Francioni, 2011, pp. 9-10
17
“Cultural property internationalism” was, according to Merryman, first
solidified in an international treaty in Hague 1954. It was not a new idea, though –
Merryman traces its roots to, for example, the Lieber Code, the code of conduct for the
Union troops in the American Civil War, as well as the 18-19th Century French writer
Quartremère de Quincy, and all the way to the ancient Greek writer Polybius.53 In Hague
1954, the internationalism is exemplified in the preamble, stating:
Being convinced that damage to cultural property belonging to any people whatsoevermeans damage to the cultural property of all mankind since each people makes itscontribution to the culture of the world;
Considering that the preservation of the cultural heritage is of great importance to all thepeoples of the world and that it is important that this heritage should receive internationalprotection;54
It is the emphasis on the whole of mankind that creates the difference from cultural
nationalism. Internationalism cares primarily about other things than the original
“nationality” of the object. In situations where there case for return is not legally and
morally clear, “Merryman advances three internationalist principles - preservation,
integrity, and access - that assist in determining the appropriate allocation of cultural
property”.55 Preservation means protection of the object from damage or destruction.
Speaking of the Elgin Marbles, Merryman states, that “[i]f the Marbles are destroyed,
people of all cultures will be deprived of an important part of their cultural heritage” and
“damage short of destruction ... threatens the same value.”56 Integrity is also quite self-
explanatory: any work of art or other cultural object should be as intact and whole as
possible – the object loses value (aesthetically, scientifically or monetarily) if some of it
has been separated.57 Finally the third principle, distribution and access, is about the
availability of the pieces. This principle holds that since cultural property is important to
all the peoples of the world, cultural property should be available all around the world, “so
that all of mankind has a reasonable opportunity for access to its own and other people’s
cultural achievements.”58
Cultural nationalism, on the other hand – as defined by Merryman –
emphasizes the national right to cultural heritage. According to Christine K. Knox,
53 Merryman, 2005, pp. 13-18; Merryman, 1986, pp. 834-83654 Hague 1954, preamble55 Sljivic, 1998, p. 41456 Merryman, 1985, p. 5757 Id., p. 5858 Id., p. 59
18
“cultural nationalism views cultural heritage as nation or state specific, and therefore
assumes that cultural property rightfully belongs in its country of origin.”59 For Merryman:
In its truest and best sense, cultural nationalism is based on the relation between culturalproperty and cultural definition. For a full life and a secure identity, people need exposureto their history, much of which is represented or illustrated by objects. Such artifacts areimportant to cultural definition and expression, to shared identity and community. 60
However, Merryman is, in the end, very skeptical of this side of cultural nationalism,
saying that in practice it is, in fact, usually merely a tool for nations to argue for their own
personal gain and retentionist policies.61 He also reminds, that “[i]t is not self-evident that
something made in a place belongs there, or that something produced by artists of an
earlier time ought to remain in or be returned to the territory occupied by their cultural
descendants, or that the present government of a nation should have power over artifacts
historically associated with its people or territory.”62
According to Merryman, cultural nationalism’s most important legal
manifestation is the UNESCO 1970 convention. Cultural nationalism itself is traceable to
the rise of nationalism in general.63 Although it had been already present in earlier
conventions, UNESCO 1970 is prominent in this regard due to its importance in the field
of cultural property legislation overall. It has already been ratified by the majority of states
worldwide and was a significant new step in cultural property regulation.64 In addition to
being “demonstrated in the preamble to UNESCO 1970 which sets forth cultural property
as one of the basic elements of civilization and national culture and acknowledges that its
true value can only be appreciated in the fullest context possible”65, Merryman emphasizes
parts of the convention like article 4 as proof of its culturally nationalistic tone:
The States Parties to this Convention recognize that for the purpose of the Conventionproperty which belongs to the following categories forms part of the cultural heritage ofeach State:(a) Cultural property created by the individual or collective genius of nationals of the Stateconcerned, and cultural property of importance to the State concerned created within theterritory of that State by foreign nationals or stateless persons resident within such territory;(b) cultural property found within the national territory;(c) cultural property acquired by archaeological, ethnological or natural science missions,
59 Knox, 2006, p. 32360 Merryman, 1985, pp. 1912-191361 Id. pp. 1914-191662 Id., p. 191263 Merryman, 1988, pp. 489-495; Sljivic, 1998, pp. 399-40064 UNESCO: Illicit Traffic65 Knox, 2006, pp. 323-324
19
with the consent of the competent authorities of the country of origin of such property;(d) cultural property which has been the subject of a freely agreed exchange;(e) cultural property received as a gift or purchased legally with the consent of thecompetent authorities of the country of origin of such property.66
According to Merryman, articles like this set a very different tone about the allocation of
cultural property than Hague 1954. In here, the emphasis is on the states – it is up to them
to define their cultural property in any way as they wish, and the convention sets out to
protect the national interest of retention of such property.67 Ana Sljivic expands on how
UNESCO 1970 works towards the nationalist premise:
Under Article 3, trade is "illicit" if contrary to a state's law. This means that if a sourcenation promulgates a law proscribing export of particular items, such export is "illicit"under the treaty. Thus, what constitutes "illicit" trade is subject to the vagaries of nationalrather than objective criteria. Such a "blank check," giving a source nation the power todefine "illicit" subjectively, without participation from market nations, affirms the idea thatUNESCO 1970 is preeminently nationalist legislation.68
Merryman’s thoughts about cultural nationalism and internationalism aren’t, however,
always taken at face value. Those in the discussion (including Merryman) tend to be
somewhat biased towards either side, which results in the fact “that the choice of terms in
which to conduct such a discussion is unfortunately often predisposed toward a particular
view” and Merryman tends to use several fairly value-charged terms.69 Prott also criticizes
Merryman’s claim of the international documents’ support for either side, as much of the
rhetoric in their articles stems from very different legislative goals: UNESCO 1970 has to
be very wide in its definition of cultural property, because the list is exhaustive, and has to
allow different cultures valuing very different types of cultural property, while Hague 1954
is exemplary (and created with a much narrower view of cultural property in mind).70
Merryman is also criticized for having a very Western view of cultural
property. According to Nora Niedzielski-Eichner, “[t]he claim that art transcends national
boundaries makes sense in relation to art created with that goal in mind”, but not all art fits
that mold.71 Missing from his list of what types of things cultural property is comprised of
and whose items they are, “are those groups not comfortable with having their cultural
objects considered as commodities for the market; tribal and indigenous communities and
66 UNESCO 1970, art. 467 Merryman 1988, passim68 Sljivic, 1998, p. 40569 Prott, 2005, pp. 226-22770 Id. pp. 227-22871 Niedzielski-Eichner, 2005, p. 194
20
creators of various sorts not regarded within their communities, or regarding themselves, as
artists but bearers of a communal tradition.”72 Merryman’s idea of cultural property is that
of commodities, while many critics emphasize the value of cultural items for (especially
indigenous) communities, items important for the traditions of such people.73 Finally,
regarding the movement of cultural objects advocated by Merryman’s internationalism,
“[m]any objects, particularly those created for religious or political contexts, were never
intended for circulation, because their significance is tied to their place of origin.”74
There are also other criticisms, some of which will be dealt with in later
chapters. Finally, I personally feel that the term ‘nationalism’ in cultural nationalism is
quite value-loaded, and perhaps does not serve the true ideals behind the principle. A term
such as ‘contextualism’ or ‘localism’ might better serve the purpose.
3. Brief History of Cultural Property
This chapter explores the history of cultural property to better understand the concept and
its origins, tracing its roots to the role of art in Antiquity, and the history of plunder. It is a
history of slow and gradual changes in attitudes and ideals that eventually lead to the
emergence of the concept as it is known today. I will trace these changes through the lens
of the history of plunder, as the attitudes towards plunder reflect very closely those towards
cultural property. Looting in war has also had an important role in shaping the ideals of
cultural property from a target of systematic plunder to something inviolably tied to the
people who have created it. This will also, at the same time, explain how and why the
situation where the objects are spread around the globe has come to be, where the idea of
the universal museum has come, and how there can be two such opposite ways to view the
allocation of cultural property as cultural nationalism and internationalism. In some ways,
they can be seen as the views of the plundered and the plunderer.
72 Prott, 2005, p. 22873 Id. p. 23174 Niedzielski-Eichner, 2005, p. 194
21
3.1. Ancient World and beyond – Near East, Greece, Rome
3.1.1. Near-East and Greece in Antiquity
Art has always been a central part of human nature and culture. And for almost as long, it
has also served many different purposes. While it can be purely a source of beauty and
aesthetics, very often there are also important other functions it represents: might, prestige,
conviction, propaganda. As an important representation of such power, art has often had an
important role also in warfare, and there is historical evidence from thousands of years ago
of art plundered after a victorious campaign. The Near-Eastern people of Akkadia had in
the 23rd century BCE constructed a victory stele to commemorate their triumph over the
Lullabi people, but about a thousand years later, the same stele was plundered by Elamites,
who conquered the once-Akkadian city of Sippar and took it to their own capital, Susa (and
carved on the opposite side a depiction of their own victory over the Akkadians). At the
same location it was then excavated in 1898 CE by the French and now stands in the
Louvre Museum in Paris.75
However, the plunder of art is not the only continuous feature represented
here. Soon after the victorious Akkadian leader, Naram-Sin, died, the Akkadian empire
collapsed after a severe drought and a resulting famine. This fall was associated with
Naram-Sin’s looting of the Temple of Enlil, which had brought the wrath of the gods upon
the Akkadians. This perceived sanctity of religious sites, and the moral outrage after their
looting, is a persistent theme in the history of plunder, and is especially strong throughout
Antiquity.76
The Greek historian Xenophon wrote that, in the Middle-East, the tradition
had been that the plundering of the defeated enemy was the rule, the only exception to
which was a humane decision by the general (philanthropy). And this tradition continued
with the Greeks and Romans as well. Sometimes the items themselves were believed to
have a great impact in the faiths of those involved, such as the protective Palladion statue
of Troy, the loss of which was said to have caused both the city’s downfall, as well as,
later, of those who had stolen it due to the sacrilegious nature of the act. This, of course,
resulted in a further importance placed on such items, for both the defender and the
75 Trevor-Roper, 1970, p. 7; Miles, 2008, p. 16.76 Miles, 2008, pp. 16-18
22
attacker, and as both coveted plunder and sacred relics not to incite the wrath of gods. Of
course, not all statues were considered to have supernatural qualities, but this did not mean
such statues could not also have similarly important value. One such example are the
Tyrannicides of Athens, who the Persian king Xerxes had removed to his capital, Susa,
upon his sack of Athens. Representing the uprising that had led to the first democratic
constitution in Athens, these statues had such widely-known symbolic importance for the
Athenians that not only were new replacements immediately commissioned after Xerxes
had been driven out of Greece, but about 150 years later Alexander the Great is said to
have sent the originals back to (the recently conquered) Athens, in a gesture of respect.77
This reveals an idea very reminiscent of cultural property.
Though plunder was an essential part of war, in Greece art wasn’t often a
specific target of plunder, but rather a result of the war. Art was created as a result of
victorious battles and campaigns, in order to thank the gods for the success. Art and
religion were inseparable, as the former was inseparably tied to the latter. Everything in the
temples was considered the property of the gods, and so immune from the plunder of war
(unlike all other property). Especially the Greeks, but also their enemies, respected this rule
quite well – though obviously not without exception, and the respect would also diminish
as time went on, due to, for example, the economics of warfare (but the moral outrage
didn’t diminish even though the rule became violated).78 There was also art in the cities’
public areas – especially statues were used in this way. Private consumption of art was
practically inexistent, and only slowly began rising from the 5 th century BCE onwards.79
These early manifestations may explain in part the perceived sanctity of
cultural property even today. For one, much of the origins of art (and as such, cultural
property) are in expressions of religion; in other words, cultural property often literally was
sacred. Secondly, already the Tyrannicides show that art has from the beginning come to
act as symbols for their places of origin. In addition, as shown by the victory stele of the
Akkadians, it has been used to symbolically elevate people over others, a show of power.
77 Id., pp. 19-20, 24-26; Greenfield, 2007, pp. 388-39078 It is also notable that although it was always frowned upon, in the early Greek society piracy was anacceptable way of life. In fact, piracy and warfare were quite indistinguishable from each other, as in bothcases a central emphasis was on pillage and plunder. Only with the development of more organized states(around the shift from the Archaic to the Classical period, circa 500-330 BCE), and so also organized armies,does piracy begin to differ from warfare and begins to be seen as more purely a criminal and immoralactivity. De Souza, 1999, pp. 17-2679 Miles, 2008, pp. 30-37; Kivistö & Riikonen, 2009, p. 359
23
3.1.2. Ancient Rome
Romans were mainly not themselves producers of art. There would be, however, a growing
interest for art in the empire, which in part resulted in a repeated, massive importation of
works of art from the conquered areas. They did still share many qualities with the Greeks
regarding the plunder after warfare. It was also with the Romans, that “aggressive art
imperialism became institutionalized ... beginning with the looting of cultural property by
Roman forces in the sack of Veii [in 396 B.C.]”80 Plunder was an essential part of
warfare,81 and they could quite ruthlessly (and in an organized and systematic way) sack
the cities they conquered, but upon entering temples and sanctuaries they would act very
respectfully and even ask the statues themselves whether they’d like to come to Rome.82
The Roman expansion especially into Greece brought in a flood of new
resources and works of art into Rome, and sparked a heightened interest for Greek art
amongst Romans. There were two opposite responses to it. On the one hand, many thought
that having such magnificent works of art concentrated on display at Rome would
emphasize the empire’s glory and strength, but, on the other hand, there were also many
who, for example, felt that the desire of such luxuries spoiled the Roman integrity and
strength. Although for the Romans, much like for the Greeks, art was still in general a
public experience, the private collection of art was in greater demand than before. It is
notable, however, that in Rome homes were regarded much more as public spaces than
later, so even there the art would not be purely in the private sphere. One concern about the
appropriation of notable art from the conquered lands was voiced by at least Polybius, as
well as, to some extent, Cicero, upon seeing Greeks in Rome lamenting over statues
plundered from their home town. They were afraid of the antipathy against Rome that such
encounters might bring on the foreigners. Indeed, the writers here quite explicitly
recognize the emotional charge and (nationalistic) value significant works of art have in
their culture of origin.83
The fears of those such as Cicero did not greatly affect the quantity of
plunder in Rome, but an effect may be seen in that many of the most applauded and
80 Merryman, 2006a, p. 481 The importance of art as bounty of war is best is best illustrated by the Triumph, the highest honor grantedby the senate to the most successful generals. In a Triumph, the spoils of war were displayed in a ceremonialprocession through Rome. (Miles, 2008, pp. 55-60)82 Miles, 2008, pp. 13, 48, 50-5383 Id., pp. 60-62, 82-90, 185-186; Kivistö & Riikonen, 2009, p. 359
24
respected generals were, in fact, such who showed mercy and restraint upon the usual
pillaging of the conquered cities. Some not only spared people and treasure, but even made
an effort to even return culturally important treasures cities had lost to pillagers. The most
famous such general was Scipio Aemilianus, who, after the destruction of Carthage in 146
BCE, returned “revered and sacred images that had been taken by Carthaginians from
Greeks in Sicily”84, echoing the actions of Alexander the Great in his restitution of the
Tyrannicides (though it is unlikely that Scipio would have had this in mind). Actions like
this were also much applauded by those who feared angering people in cities whose
statuary and other property the Romans took. In a different type of incident (one that is
opposite, but shows the same kinds of ideals), after he had quite ruthlessly pillaged the
Greek city of Ambracia in 189 BCE, general Fulvius Nobilior was ordered by the Senate to
return his plunder to the city (though many statues nevertheless remained in Rome).85
3.1.3. Cicero and the Verrines
In Rome, there was one event which had a great influence on views and arguments about
cultural property all the way to even our times. This was the prosecution of Gaius Verres,
on the charges of extortion of forty million sesterces from the locals while he was acting as
the governor of Sicily, from 73 to 70 BCE (exceptionally for three years, instead of the
usual one, due to the slave rebellions of Spartacus). Although the charges themselves were
not formally about the misappropriation and plunder of local cultural treasures, but rather a
more general charge of misuse of office, Cicero – the prosecutor – spent a great deal of
effort to prove how Verres had not only extorted money but acted in ways even more
heinous and un-Roman, even before his time as governor of Sicily – and here the plunder
of art came into central stage. And though Cicero never got to deliver most of his speeches
in the trial because already after the opening statement Verres decided to go voluntarily
into exile, it did not stop them from becoming widely known and recognized after he had
published them in writing.86
The actions of Verres describe what the Romans’ lust for art could be like in
extremes and what kind of a status art had in Rome, but more importantly, the widely
84 Miles, 2008, p. 9685 Id., pp. 95-99; Kajava, 2009 p. 12986 Miles, 2008, pp. 116-117, 125, 129-131. Before the Verrines, the publishing of speeches was not acommon practice (and in fact it could be said that the Verrines created this literary type). On Cicero’s reasonsfor publishing, see Id. pp. 137-143
25
spread speeches that Cicero published would set the tone of the rhetoric – and even explicit
arguments – used in cultural property repatriation argumentation for millennia to come.
Even in the late 18th century would the Verrines be used as an important model by Edmund
Burke in the prosecution of Warren Hastings, and the speeches were still widely used as
models of rhetoric and as a common part of Latin education in the 19th century.87 And in
his famous poems against Lord Elgin, Lord Byron drew much inspiration from Verres as
well.88
Cicero wanted to paint a picture of Verres as a ruthless pursuer of own gain
and a greedy hoarder of luxuries. In this he not only looked throughout Verres’ career as an
official, but compared him to examples of past activities of honorable Romans. Throughout
his career, he had managed to create an astonishing track record of criminal activities of
everything from theft and extortion to murder.89 Cicero didn’t condemn even large-scale
plunder and pillage, but that was always only done when it was necessary as a part of war.
In comparing Verres to the honorable generals, Cicero wanted to show both that the
plunder was only acceptable in war against enemies, not during peace with people under
Roman control, as well as that the honorable generals showed modesty, personal restraint
and respect for the defeated people and their culture and property.90 The Verrines in their
own part solidified the idea of every peoples’ right to their own cultural property, the
culturally nationalistic argument.
3.2. Cultural Property and War in Modernity
3.2.1. 30 Years’ War
In the example set by Rome, following empires such as Byzantium would place high
emphasis on the symbolic power of public works of art, but soon looting in the scale that it
had been would greatly diminish. The later era of the Middle-Ages brought back plunder in
a larger scale in the Crusades, and we can still see some of their plunder in for example
Venice, who took the four horses of Lysippos from Byzantium in 1204 (and, ironically,
87 Id., pp. 7-8, 302, 305-30788 St. Clair, 1967, pp. 16389 See in general Miles, 2008, pp. 105-151. In one extreme case, Cicero even talks about Verres crucifying aRoman citizen – “a punishment usually reserved for rebellious slaves.” (Id., p. 133)90 Id., pp. 97-100
26
centuries later lost them again to Napoleon, though only for a while).91 But, although the
crusaders could certainly be as aggressive with their plunder as the Romans, in the late
period of the Renaissance a new emphasis was placed on private collections, which meant
a change of direction in the course of plunder, as before the emphasis had been on more
public monuments.
Coming to the 17th century, collections of all kinds – especially art and books
- would come to mean things such as power and personal magnificence for the ruler who
held them (and it was not only the rulers – by the end of the 16th century the greatest
aristocrats could outdo even the princes with their collections); the function of art had
changed drastically since the times of Rome. The monarchs rivaled each other in building
collections more grand than the other, a trend greatly helped by a time of relative peace
(though the extravagances of the princes did cause unrest amongst the common people
who would end up paying for them) and a newly-founded, continent-spanning art market in
its full boom. However, the competition eventually culminated during the 30 Years’ War,
in “the last unredressed violent artistic upheaval in Europe.”92
When hostilities broke out all throughout Europe in the 30 Years’ War, it was
no coincidence, then, that the art collections of the rivaling kingdoms became a prime
target of pillage. There was a great symbolic power in absorbing the collection of an
opponent, and this would happen, or be attempted, numerous times over the course of the
30 Years’ War, beginning with the swallowing of the Protestant Palatine library into the
library of the Vatican – and act quite unlike any before between European nations. But not
all the art would be plundered. The court of Mantua sold in 1627 and the following years
the bulk of their famous art collection to keep up with the dukes’ boisterous lifestyle, an
act which caused a huge outcry amongst the people of the city who had come to consider
the collection a national one, instead of private property of the dukes.93 The Mantuans
heralded a change in attitudes to be followed on a wider scale only in the 19th century.
91 Merryman, 2006a, pp. 5-6; Miles, 2008, p. 275-281; Wilson, 1985, pp.102-10392 Trevor-Roper, 1970, pp. 7-1693 Id., pp. 22-36. In a sale that was viewed by contemporaries as scandalous, the collection was bought byCharles I of England who considered this purchase the most successful moment of his career. He would notpart with the collection even though the Mantuans were willing pay twice the sum to buy it back. As it were,the works of art were safer off in England, as soon after the sale the 30 Years’ War caught up with the cityand the palace was stripped of all remaining works, never to be found again. After the demise of Charles I inthe English Revolution, the collection would be sold on to agents of other sovereigns.
27
The battle over the arts in the 30 Years’ War eventually culminated on the
collection of Rudolf II (1552-1612), Holy Roman Emperor from 1576 to 1612. Though
there were many other collections alike, the very reclusive and eccentric emperor had
managed to assemble the most magnificent collection in all of Europe, by patronizing and
buying works from many of the greatest artists and craftsmen from around the continent. It
was no surprise, then, that after his death, in the 30 Years’ War, his treasures did not
survive for very long in one place. The first threat came already in 1619, but from within:
“the rebellious Bohemian nobility, having deposed of the Hapsburgs (at least on paper),
proposed to convert their treasure into cash in order to finance their revolution”94, but the
sale was interrupted by the battle of the White Mountain. A much greater threat ensued
when the Swedes entered the war in 1630. The Swedes, led by Gustavus Adolphus,
vigorously plundered the cities they conquered, such as Munich in 1632 – at which point
its collection was second only to the Emperor’s. The King died soon after, though, only to
be followed by his daughter, the culturally insatiable Queen Christina, who was intent to
turn the capital city Stockholm into one of the cultural centers of Europe. And for this she
turned her eye on Prague, and the collection of Rudolf II. On the first occupation they
missed the loot because the imperial chamberlain had hid it in time in a safe place. But the
second time, in a hurry before the peace-negotiations already underway would spoil the
opportunity, Prague was captured again and plundered with the clear object of securing the
imperial collections for the Queen.95
The Queen did not, however, long hold on to her vision of Stockholm as a
cultural center. In 1654 she abdicated the crown and left for Rome, taking much of her art
collection with her, buying, selling and even looting (from unsuspecting hosts) more works
on the way. After her death, the collection dispersed even further. The plunder of Rudolf
II’s collection is the last successful campaign of plunder of arts in such a scale, and not to
be equaled perhaps until the Second World War, or at least the Napoleonic wars. Although
later it would be attempted by at least Napoleon and Hitler, in the long run all those
attempts would be redressed. The Peace of Westphalia also stabilized conditions so that the
warring princes in Europe would no longer pillage each others’ treasures like they had in
the 30 Years’ War and before. Art also lost some of its ideological meaning and wasn’t
such an integral part of the prestige of the government – and in fact, as had in some ways
94 Id., p. 1795 Id., pp. 12-13, 17-18, 38-45. Much of the art did not make it to Stockholm, but was lost on the way (whichwasn’t unusual).
28
already been seen in Mantua, it would become more and more seen as something of the
public sphere, national collections, instead of private property of the ruler.96
3.2.2. Napoleon
But the idea of the one center of culture with all the greatest works of art in the world was
not dead for good. At the end of the 18th century, Napoleon had the vision of Paris and the
Louvre as such a place, and had very systematic plans for achieving this goal.97 In his
conquest of Italy, he had already before the invasion devised a precise plan on where, how
and what pieces of art would be looted and brought back to Paris from the conquered
cities. And his success in war made sure that his plans would bear fruit. In a couple of
years Napoleon had stripped most of Italy of all its greatest sculptures and paintings and
sent them to Paris to the Louvre (soon to be named Musée Napoléon). He took a lot from
the Vatican, moving the entire papal archive from Rome. As a further connection between
his empire and that of ancient Rome, when the most important works would arrive in Paris,
Napoleon had them displayed in a procession closely modeled after the Triumphs in
Rome.98
The actions did not go uncriticized, though – certainly not abroad, but even
inside France, there were some who would openly oppose such a violent dislocation of art,
the most recognized of which was artist and architectural theorist Antoine-Chrysostôme
Quatremère de Quincy. In the open letters to General Miranda, he made good use of
Cicero’s Verrines, and contrasted Napoleon’s actions to those of Scipio Aemilianus, famed
for his repatriation of statuary. Although his objections were in part political,99
Quartremère made his case by claiming that art was universal and so not to be possessed,
but rather ought to be held in its original context, for the benefit of all humankind (an idea
originating at least from Polybius, and transmitted to Quartremère through Cicero).100
Quartremère is one of the first to argue in these very modern ideas of cultural property of
all humankind and original context. What is most striking to the contemporary observer is,
96 Id., pp. 47-59; Wilson, 1985, p. 10397 On the origins of the Louvre, see McClellan, 199498 Miles, 2008, pp. 319-324; Gould, 2007, pp. 4-699 McClellan, 1994, p. 195100 Miles, 2008, pp. 326-327
29
however, that he in fact combines the internationalist and nationalist arguments into one.101
In fact, originally the two ideals were usually not so separate, as they now appear.102
Of course, Napoleon’s looting was not limited to Italy. His armies would
plunder treasures from wherever they went, for example Germany and the Netherlands.
But the French quest for loot was not only restricted inside Europe, as they amassed a great
mission in North Africa, mainly Egypt, as well. While the military side of the campaign
was quite a fiasco, the artistic side had remarkable results. With the troops Napoleon had
scientists and specialists, doing research, excavations and the like. The result was “a wealth
of knowledge about Egypt, ancient and modern”103 as well as a handsome collection of
excavated artifacts, some brought back to Paris and some – such as the Rosetta Stone – lost
to the British after the military defeat the French suffered in Egypt. The result of the
Egyptian campaign was something far-reaching and unforeseen as it inspired a new wave
of enthusiasm towards Egyptology – and on the contrary to the Italian plunder, the
Egyptian artifacts were well-received throughout Europe.104
Napoleon’s plunders came to an end at the battle of Waterloo in 1815, when
the Allied forces finally defeated the French. The Commander of the British army, the
Duke of Wellington, made the historic decision to return all the art plundered by the
French to their earlier owners. He also left all works that did belong to the French where
they were, even though there were those who saw it fit to plunder as reparations for the
losses suffered in war (an argument used by the French before). In fact, the British took
nothing from Paris – though the locals, who saw the art as rightfully belonging to them
now (due to many reasons, amongst them the custom of “to the victor the spoils”, as well
as due to the plunder having been made through quasi-legalistic peace treaties), directed
their resentment towards them. Nevertheless, although many pieces could not be returned
for a variety of reasons, a majority of the artwork plundered by the French was now
101 McClellan, 1994, pp. 194-197. Quartremère and his allies’ campaign did eventually bear some fruit withthe Bourbon Restoration of a great deal of religious material, but his campaign against museums like theLouvre in general wound up unsuccessful. (Id., pp. 194-204). As has been noted earlier, for Merryman,Quartremère represents one of the early examples of cultural internationalism, but as can be seen, in realityhis ideas were a blend of both internationalist and nationalist ideas and can be used by either side of theargument for completely opposite positions. See Prott, 2005, pp. 228-229102 Gillman, 2010, p. 55103 Id., 2008, p. 328104 Id., 327-329; Greenfield, 2007, pp. 238, 390. The result was also that the campaign sparked somewhat ofan obsession in all the European powers, and especially caused a massive competition between England andFrance, where both sides would furiously excavate the desert for hundreds of thousands of artifacts. Shuart,2004, pp. 667-669
30
returned in a fairly orderly fashion to their previous owners (including, to Venice, the
aforementioned horses of Lysippos (nowadays more often known as horses of Saint
Mark)). The restitution after Waterloo set a huge precedent for future warfare, and had a
great impact in changing the views regarding plunder towards opposing it.105
In part, Napoleon’s actions were fueled by the great competition of the
colonial powers. All the countries in Europe wanted to show off their might though many
different ways and cultural property was an important way of doing that. It was not only
Napoleon that wanted the great universal museum. In the course of the 19th century, the
colonial powers would import huge amounts of cultural items from all over the world.
Combined with a great thrive in pursuit for scientific knowledge, there was a massive
influx of artifacts and works of art coming in to the Western countries. Some were from
legitimate archaeological sites, some from more-or-less ruthless demonstrations of colonial
power.106 It is also in this time that some of the most famous restitution cases were
conceived, for example the Parthenon Sculptures and the Benin Bronzes.
3.2.3. World War II
The last great campaign of plunder of arts was performed by Nazi Germany before and
during the Second World War. By this time, though, there was a clear rule of international
law, developed through custom and finally written down in article 46 of the Hague
Convention on the Laws of War in 1907, as well as the Kellog-Briand pact of 1928, both
of which Germany was a party. Hitler had a very similar idea as Napoleon and Queen
Cristina of Sweden (an idea that can be traced all the way to Rome) – to create a cultural
center of Europe (and the world). Hitler wanted to amass all the greatest art in Europe into
Linz, into what would be the “Führermuseum”. Much of the art also went to the highest
ranking Nazi officials, and especially much of the “degenerate”, un-Aryan art – mainly
modern art and art that had something to do with the Jews – would also be sold on. 107
The way the Nazis performed their looting was extremely systematic,
especially when plundering from the Jews. There were several organizations charged with
the task – though many of them were also overlapping and would result in a competition
and conflict between the different branches. In France there were three:
105 Miles, 2008, pp. 329-336; Mackay Quynn, 2007, pp. 6-9; Merryman, 2006a, p. 6106 Barkan, 2002, pp. 19-20107 Merryman, 2006a, pp. 7-8; Walton, 1999, pp. 556-557; Feliciano, 1997, pp. 15-16, 20-21
31
The Kunstschutz, which took its orders from the Wehrmacht; the German embassy in Paris,which took its orders from the Ministry of Foreign affairs; and the Einsatzstab ReichsleiterRosenberg für die Besetzten Gebiete, known as the ERR, which took orders directly fromNazi ideologue and Party leader Alfred Rosenberg. In the end, it was the ERR thatdominated the other two branches, though to complicate matters still further,Reichsmarschall Hermann Goering ... surreptitiously but effectively controlled the ERR.108
Joseph Goebbels was placed in charge of a mission to repatriate German art from the
conquered lands. There were three types of art to be repatriated: art taken in the
Napoleonic Wars; art of German origin; and art of “Germanic character”. In aiding this, the
heads of the party sent an order to art historian Otto Kümmel, “to compile an exhaustive
list of German art held in foreign countries since the beginning of the sixteenth century.”109
Aided by this three-volume list consisting of even the smallest pieces of art, and which did
not care about how the art had been transferred away from Germany, the Germans
demanded art returns from all over Europe and beyond, including the United States and the
Soviet Union. And of course in all the conquered countries any objects on the list could
simply be taken, though the Nazis did also at times appear to follow quasi-legal
formalities. And it wasn’t always utterly baseless, as in the case of France there was still a
great deal of art that had been just as wrongfully plundered by Napoleon.110
But the worst of the Nazis was to be received by the Jews wherever the Nazis
had control, and they would be stripped of all the valuable possessions they had (wherever
the Nazis invaded, it was always first the Jews who were the target of plunder, then any
other property deemed to be seized to Germany).111 The Germans were also very aware
that many of the leading art dealers in Europe were Jews, and so there was a double
incentive for them to track down every Jewish collector and their often-impressive
collections (which the owners, of course, did often do their best to hide – as well as
transfer abroad). Especially in France, there were, for a country at war, almost incredible
resources spent on the tracking down and transferring away of the art collections of the
Jews.112
According to an estimate made by the Allies in 1949, over the course of the
Second World War the Nazis stole just under 250,000 paintings alone. And if one counts
all the different types of cultural property, the amount of stolen object is well in the
108 Feliciano, 1997, pp. 4-5109 Id., p. 24110 Id., pp. 3-6, 24-30; Walton, 1999, p. 557111 Merryman, Elsen & Urice, 2007c, p. 16112 Feliciano, 1997, pp. 16, 23, 39-40, 46-49
32
millions.113 However, it was not only the Nazis who would plunder in the war, as also the
Soviet Union would make its own campaign of systematic looting of the conquered
German territories (partially motivated by retribution,114 partially by other reasons, like
their own desire to create a museum like the one Hitler had planned in Linz115). In a short
while, after conquering the formerly German-occupied territories, the Soviet Union had
extracted hundreds of thousands of pieces of cultural property from Germany, whether it
was Russian or German of origin or having been taken by the Nazis from any other of the
Allied countries.116 However, even with the massive counter-plundering campaign
performed by the Soviet Union, the amount of art looted by them would still not compare
to the amount plundered by the Nazis.
There were already during the war plans being made within the Allies of
restitution of art looted by the Germans. Once Germany had been defeated, however,
almost all attempts at coming to a functioning solution between the winning states failed.
All the countries had their own interests they were trying to push forward, and all the while
the Soviet Union was hiding all information from its territory as well as continuing (also in
secret) its own looting campaign.117 There were several important collections that were
thought lost or destroyed during the war that were only in the 1990’s discovered to have
been taken and hidden by the Soviets.118 The restitution campaign was erratic at best,
certainly not helped by the upheaval of almost all of Europe and its cultural property as a
result of the war,119 and hindered even further by the Soviet Union’s actions, but it did
plant an important seed that did perhaps in later decades grow into a more effective
campaign towards a more comprehensive restitution. Of course, at that point a lot of the
artwork, information and rightful owners had gone missing.
Regarding cultural property, the Allies did, however, manage at least one
notable result at the end of the war: in the Nuremberg trials, for the first time in history the
113 Walton, 1999, p. 550114 Feliciano, 1997, p. 218115 Kurtz, 2010, p. 187116 Id., p. 182; Merryman, Elsen & Urice, 2007a, pp. 63-64. On the Soviets’ removals of cultural property,Stalin’s decrees and how the plunder was organized, see Akinsha, 2010. On Russia’s laws that make anyrestitution of World War II plunder very unlikely, see Grimsted, 2010 and Sandholtz, 2010.117 Kurtz, 2010, passim118 Merryman, Elsen & Urice, 2007a, pp. 63-64119 Chamberlin, 1983, p. 177
33
plundering of cultural property was made into a war crime when many of the Nazi officials
were charged and sentenced with charges relating to (among other things) the looting.120
The results of the plunder of art during the Second World War are still visible
today. The massive upheaval of art caused numerous priceless collections to be scattered
around the world, into both public and private hands. Many who bought or got a hold of
such pieces did know their history (or knowing the risk did not wish to inquire too deeply
into the provenance)121, but many also didn’t, and the more hands such a piece has been
passed to, the more unlikely it is that there is any knowledge of the original illegality of the
acquisition. This has caused lots of strife between owners in good faith and original owners
(or their heirs) hoping for restitution. And because of the nature of the art market, it is easy
for potential buyers and sellers to hide details of the exchange, the parties and the
provenance of a piece from the larger public, so that in a case where a painting which
could be claimed by the original owner, those involved can either pull the piece from an
auction, or hide it so that it cannot be traced.122 It has also been said that at least most
museums hold stolen art in their collections.123 And there are still, on a fairly regular basis,
cases of art stolen by the Nazis found and even confiscated from private owners. Most
recently, in the beginning of November 2013, news spread of a German man whose father
had been an art collector in the 1930’s and 1940’s, with a collection of art many of which
were most likely taken from the Jewish by the Nazi, with an estimated value of up to even
a billion dollars.124
The experiences of World War II also greatly affected the birth of
international (as well as national) legislation on cultural property. The fact that “[c]ultural
property instruments arose out of experiences of conflict”125 and that “[t]he struggle to
define ‘cultural property’ and to determine appropriate protection for it in the twentieth
century has arisen from, and is entwined with, looting and theft of (primarily art) objects
during war”126 have strongly affected what kind of route the (international) legislation has
120 Merryman, Elsen & Urice, 2007c, pp. 16-21; Feliciano, 1997, p. 6121 Jones, 2012, p. 3: “Many of the [Boston Museum of Fine Arts’] works of art from the Nazi-era have littleor no provenance record. In a conversation with Dr. Victoria Reed, she indicated there was time after WorldWar II when curators and directors frequently did not want to inquire too deeply into how a work of art cameinto possession by a seller or donor. She made it clear, though, that just because there is a gap in provenancedoes not necessarily mean that the art was improperly acquired from victims of Nazi persecution.”122 Walton, 1999, pp. 567-568; Meyer, 1974, pp. xiii-xiv123 Walton, 1999, p. 572;124 BBC News: Nazi looted art125 Flessas, 2003, p. 1082, footnote 49126 Id., p. 1092
34
taken. There has always been a strong emphasis on the preservation of the objects, as
shown by the very first treaty on the matter, the 1954 Hague convention. The UNESCO
1970 convention also emphasizes this point, as well as the role of the nations and their
right to their own cultural property (in other words, emphasizing their sovereignty, echoing
the violations of sovereignty in the two World Wars). The international legislation in the
20th century in many ways finalized the development that properly began after the battle of
Waterloo. We are also now seeing the risk of going too far, the fear of losing something we
do not perhaps now see as valuable is leading a very high chance of over-flooding the
cultural property field so that too much is protected and we lose sight of what really is
valuable and what is not. Everything cannot be preserved and some things need to be let go
if we wish to preserve cultural property as something meaningful in our lives.
4. What’s Yours is Mine – Cultural Property Argumentation
In this chapter I explore the argumentation in the demands for the restitution of cultural
property. The aim is, on the one hand, to act as an introduction into the debate: to present
its foundations and such arguments that are used throughout the discourse. On the other
hand, the aim is to find out how different arguments are used throughout the discussion, in
order to find out if there are structures and patterns in the use of the argumentation and the
rhetoric which can then be used to explain some of the indefinite nature of the debate.
There are certain themes and types of argument that tend to repeat themselves
in different cultural property restitution cases. For example Paul Bator127 (though speaking
in more general terms) and Lyndel V. Prott and P.J. O’Keefe128 have gathered and
compiled a great deal of the different arguments used in the debate. In Bator’s approach,
there are different values which, in effect, can be translated into actual arguments, and
from his values other writers have developed this categorization even further.129 Prott and
O’Keefe have compiled six main arguments for restitution and five for retention. In
addition, they list several background factors which also have an effect in the
127 Bator, 1982128 Prott & O’Keefe, 1989129 Urice, 2006, p. 145. In regards to the work by Bator, Patty Gerstenblith has critiqued his approach, sayingthat while Bator does acknowledge “the losses caused by plunder of sites and monuments, his failure to treatdifferently the category of archaeological materials looted directly from the ground and to incorporate thatdistinction consistently into his legal analysis produces an unfortunate but significant flaw in this landmarkwork.” (Gerstenblith, 2001, p. 198, footnote 2) In regards to the cases studied here, however, this omissiondoes not have great significance.
35
argumentation.130 I will use these lists as basis for the comparison of the argumentation in
the different restitution cases, though will omit some less important points, or such less
suitable to those in this study.
4.1. Home culture
Almost all of these arguments are present in the most famous and one of the oldest of the
still debated cultural property restitution cases, the Parthenon Sculptures.131 Often referred
to as the cause célèbre of restitution cases, it has been a matter of contestation ever since
its beginnings in the turn of the 19th century. The marble sculptures were removed from the
Parthenon in Athens and shipped off to Britain, where they were eventually sold to the
government and located in the British Museum where they still are.132
The foundation of the Parthenon case, as well as all other cultural property
restitution cases, is the basic notion of the cultural nationalism approach, as here defined
by John Henry Merryman:
[T]he Marbles belong in Greece because they are Greek. They were created in Greece byGreek artists for the civic and religious purposes of the Athens of that time. ... [B]eing inthis sense Greek, they belong among Greeks, in the place (the Acropolis of Athens) forwhich they were made.133
As noted above, this argument is in the core of all cases for cultural property restitution –
and in that sense is not even an argument per se, but rather a basic assessment, based on
which the further arguments are made. For example, Prott and O’Keefe do not list it as a
separate argument but rather under this idea are smaller arguments which in total constitute
this assessment.
While in most of the cases there is no uncertainty regarding this argument –
the Parthenon Sculptures are Greek and, were they to be returned, they would go to Greece
(and Athens, in particular); the Nefertiti Bust would go to Egypt, and so forth – there are
some where claims have been made, but it is uncertain what really would be the “rightful”
130 Prott & O’Keefe, 1989, pp. 838-855131 The sculptures are usually referred to as either the Elgin Marbles or the Parthenon Marbles. However,both these terms are sometimes associated with either side of the argument (“Elgin” for the English side and“Parthenon” for the Greek). Sometimes the term Elgin Marbles is also used to mean specifically thosesculptures that were taken by Elgin and are now in the British Museum. I use the term Parthenon Sculpturesin accordance with the agreement on that term, reached by the two governments in 2010 (Shyllon, 2011, p.430). On the naming of the “Elgin Marbles”, see Webb, 2002, pp. 51-54.132 See in general St Clair, 1967133 Merryman, 1985, p. 1911
36
place of restitution, should a restitution be decided upon. One such interesting case is that
of Hebrew Manuscripts, which is an unusual one in many ways. Instead of being about a
single object or objects from a single time and place, or even from a single source, it is a
more general case for return of objects taken in many different points in history, in many
different places – religious and other manuscripts taken from the Jews during the long
history of oppression against the Jewish populations in Europe. Although texts of Jewish
origin can be found in many places, and such texts have ended in those places in many
ways, a great deal of the demands do focus on the collection of the Vatican where a large
deal of the collections have wound up sooner or later, often with an unknown provenance
(many of which have been taken by force at some point in history). The reasons why the
manuscripts are demanded to be returned are in essence twofold: the religious and cultural
importance of the texts to the Jewish people, and the morally wrongful way in which many
of these manuscripts were taken (an argument which will be discussed later).134
To leave all other elements aside and simply focus on where the Hebrew
Manuscripts would belong were such a restitution to be made, there is a clear problem with
this case. Unlike in the average restitution case, the Hebrew manuscripts do not have an
obvious “home” where they would belong. The Jewish people, although in many ways
culturally their separate group (in other words, it could be argued, not just sharing a
religion but being of a kind of Jewish “nationality”), have been dispersed here and there
amongst the different populations of Europe and the objects in question have been taken in
many times and in many places, from indeterminable people. The main source of demands
for restitution is the state of Israel which does claim to speak for all the Jewish people, but
it’s somewhat questionable whether the state can really claim to represent all the Jewish
people who still are scattered around the world in many different cultures – and have been
a very long time in history.135
And yet another matter are more recent cases. During the Second World War
the Nazis plundered from the Jewish people and countries with large Jewish populations all
over Europe. The Israeli ambassador in Prague has claimed the return of items taken by
Nazis from Jews in Czechoslovakia and other European states and brought to the “Museum
of a lost race”, and later after the wars passed to the Czech state. In 2004 the Czech
Republic returned to Poland the Saraval collection of Hebrew manuscripts that had been
134 Greenfield, 2007, pp. 206-221135 Id., p. 213
37
stolen by the Nazis from Wroclaw in Poland in 1938.136 These different situations reflect a
fundamental question in the debate and its inherent conflicts: who has the right to represent
a culture? In a less crucial manner, it also deals with the way cultural nationalism is
defined: is it a matter of culture or a matter of (nationalist) state? On the one hand, in the
case of the Hebrew manuscripts that have been taken in the course of history, the objects
have been taken from separate communities – that do share a culture but are still also
scattered around (but often kept separate from137) the different cultures around the
continent – but are now claimed by a single state created centuries later in very different
circumstances. On the other hand, the post-World War restitutions have often targeted the
locations where the specific communities were, like Poland. But if Israel is accepted to
represent the Jewish people (and since it can even be seen as redress for the treatment of
Jewish people in the Second World War), being even called “the Jewish State” in the
original General Assembly resolution,138 should the cultural objects be given there, as the
state itself demands?
Many of those who survived the war did also leave for Israel, and nowadays
the state is home to approximately half the Jewish people in the world. However, the
general rule is that “the country of origin of a certain item of cultural property is also the
country of the people whose cultural heritage that item represents.”139 But the Jews might
just be a special case, both a part of and apart from the many different (European) nations
on whose territory they have been located in. The state of Israel may be the Jewish state,
but some of the communities that have been the victim of the many persecutions against
the Jewish people do also still exist and are making demands. There is also not just one
single Jewish culture in Israel, but rather the state is rather clearly cut into different Jewish
ethnicities, in quite separated societal and cultural niches.140 And, as we have seen, some
countries now do indeed cherish their Jewish heritage, as well. However, one Israeli writer
finds this newfound respect for the cultural heritage of the long-spurned Jewish people as
“ironic”, and rather states that “[j]ustice, fairness and common sense alike” dictate that
“once the principle of the right of the Jewish people to own the cultural property
representing their cultural heritage is accepted, the disposition of this property and the
modalities concerning its distribution will become a matte to be settled between the State
136 Id., pp.220-221137 Blum, 2000, p. 92138 GA 181 (II), p. 133139 Blum, 2000, p. 92140 Dominguez, 2000, pp. 30-35
38
of Israel, on the one hand, and the organizations representing the [major Jewish
communities of the Diaspora], on the other hand.”141 But this is a matter far from resolved,
and one that is of the essence in all cultural property debate.
A comparable case is that of the Zeus Altar of Pergamon in Berlin.142 It was
created in the 2nd century BCE in what was then a Hellenistic culture, in an area is now a
part of Turkey, then part of the Ottoman Empire. It is Turkey that has led a campaign for
restitution (though started by the local mayor, who feels that the altar is most of all a
representation of the city, not Turkey), but there are clearly also connections with Greece,
who are more generally seen as the descendants of the Hellenic cultures.143
In a case related to both Israel and Turkey, several writers have also brought
forth issues in the situation in relation to the division, disappearance and founding of
nations, as well as cultural minorities inside such nation states:
It is also true that the question of return can be very complicated because of the creation ofnew nation states. For example, the question might arise whether Iran could validly claimKurdish material. There are many situations in which minority, ethnic or religious groupsare seeking autonomy within a state and where an object could be a focal point of thisambition, such as, for instance, the Sikh throne of Amritsar.144
A similar problem would rise for nomadic tribes or such tribes in Africa that have been
split between different states artificially in the division of the continent by the colonial
powers. All in all, the problems here show that the idea of a home culture is far from clear,
and in many cases it will require the settling of many deeper issues before any
considerations for the actual restitution can even be made.
4.1.1. Home culture subcategories
As stated above, the “home culture” argument or assessment can be seen to have several
subcategories which, in my opinion, act as the actual arguments in the debate. In the
categories set by Prott and O’Keefe, these are the need for cultural identity, the
appreciation in its own environment and the need for national identity.145 In the value-
141 Id., pp. 90-94142 The altar was brought in the late 19th century from the Hellenistic city of Pergamon, in the area ofmodern-day Turkey, to the Prussian Empire, and is now reconstructed (though not necessarily authentically)in Pergamon Museum in Berlin. (Bilsel, 2000, pp. 1-4)143 Bilsel, 2000, pp. 4-15144 Greenfield, 2007, p. 410145 Prott & O’Keefe, 1989, pp. 839-843
39
based approach based on the work by Bator there are two values to be seen to fit inside the
main argument, the ‘inalienable national identity value’ and the ‘essential propinquity’.146
Many of these arguments deal with the significance of cultural objects to the
cultural identity of a people. The arguments of the need for cultural identity and national
identity, the inalienable national identity value and the essential propinquity are all similar
ideas, though all with some important differences in detail. The main difference between
the cultural and national identity arguments is the manner in which they are utilized. The
national identity argument is more a political argument than the cultural one, focusing on
the building of a unified state. It is especially useful in post-colonial situations:
For the national administrations, building a national identity is an important part of theiradministrative task if the country is to survive as a unit, which is very often an economicimperative. Promoting understanding between regional cultures and fostering national pridein the variety of the State’s cultural achievement is one way of forwarding the necessarypolitical commitment to a state whose historical roots are fragile.147
The national identity argument also raises questions about state succession, and highlights
the importance of cultural property to the unity of states: for example the throne of
Menelik II was removed from Ethiopia by Italy precisely for the reason of destroying the
national identity (it has since been returned).148
The cultural identity argument is more about a specific community, and more
about morals than the more secular national argument. A culture, in order to survive and
progress, needs access to its past, and cultural property provides one such access. When a
culture is deprived of objects from its past, it can create “a cultural void which cannot be
filled.”149 Cultures need their roots for not only a feeling of unity and community, but also
for inspiration for people like craftsmen and artists.150 There is a quality in cultural
property that cannot quite be explained simply through the ordinary (or Western) ways of
viewing the world. One way of describing this quality is through the term “mana”. This is
an old concept: “[i]n earlier times conquerors took the cultural property of the losers, in the
146 Urice, 2006, pp. 152-154147 Prott & O’Keefe, 1989, p. 842148 Id., pp. 842-843149 Id., p. 840150 Id., p. 840
40
belief that the mana, or cultural identity and strength of the conquered, was embodied in
those objects.”151
Often colonial states have had their cultural traditions denigrated and an
attempt made to assimilate all in the country into the one official mainstream culture.
Many cultural objects have been neglected, destroyed or taken away to Western museums.
There are many cultures, both national and smaller in scale, that have found that they “are
now almost entirely devoid of their cultural heritage.”152 The Oceania region has many
such examples, but they can be found in many other places, as well, although the argument
of being deprived of cultural property is also used by culturally rich nations such as Greece
and Italy (which have seen massive amounts of cultural property exportation in their
history, but also have much more to spare from).153 With the (fairly recent)
acknowledgement of the importance of cultural diversity, the cultural impoverishment of
especially many aboriginal cultures is now seen as a serious issue, and several countries
such as Australia have very positive attitudes in regards to restitution to such peoples.154
These arguments do not go uncriticized, though. Firstly, since culture is not,
in fact, tied to cultural property, it can be questioned whether there is a need for the
material for a culture to continue. After all, you cannot take away the immaterial
expressions of a culture.155 However, without any physical expression of culture, it is too
easy to assimilate and identify to the mainstream culture which is then much more visibly
present and forget about one’s culture of origin. And as has been seen, there is some kind
of inherent “mana” in cultural objects, which does contribute to the overall manifestation
of culture.
Secondly, and related to the previous counterargument, it can be questioned
how much cultural property cultures (nations) really need. A blanket request for any
cultural objects of the home culture (quite rare in reality, though not unheard of) is quite
excessive when arguing for not having enough cultural property to maintain the culture in
question. Surely not everything is required. The argument is in a more common form when
talking about countries that are already rich in cultural property – Greece and Italy are
151 Merryman, 1985, p. 1914152 Gerstenblith, 2001, p. 206. According to her, this is ”because of 19th century colonialism and the 20thcentury [art] market”.153 Prott & O’Keefe, 1989, pp. 839-843154 Greenfield, 2007, p. 423155 Prott & O’Keefe, 1989, p. 841
41
common examples. Even though they have had a vast amount of objects removed, these
states still have so many cultural objects that a large majority of them cannot even be
displayed but are locked in warehouses.156 This is indeed a valid point, especially when
speaking about ordinary archaeological objects and other “everyday” cultural property.
However, in many cases there is also another value to be considered, the inalienable
national identity value.
In many ways, the inalienable national identity value is simply a different
formulation of the national (or cultural) identity argument. But there are certain
differences. While sometimes in extreme cases some are “advocating the return of all
cultural property to its place of origin, no matter what the particular circumstances,”157 in
more balanced claims there are certain differences in nuance in comparison to the cultural
identity argument:
Balanced approaches to the very real connection between cultural property and nationalidentity recognize that certain objects have a “symbolic nature” and “high emotionattached” to them. These symbolic and emotional connections can lead to a justification forreturn.158
In other words, although a state or culture may have plentiful cultural property in general,
there may be certain objects that have simply such an important value on their own, that it
could be seen as a moral obligation to return them to their culture of origin. Of course, this
requirement can also be used on the other side of the debate, and often is, to argue that a
certain object does not have such value, and so need not be returned.159
Sometimes, especially in the case of Egyptian artifacts, it is also argued that
the objects have such an importance precisely because they were removed. The removal of
antiquities from Egypt and their ensued displaying in the museums brought a boom of
Egyptology in Western countries – but also in Egypt where earlier the ancient history had
been widely ignored.160 The newly spread interest in Egyptology also brought a whole new
value to these artifacts.161 Also, iconic individual works like the Parthenon Sculptures and
156 Merryman, 2006b, p. 110; King, 2006, pp. 304-305157 Urice, 2006, p. 152158 Id., pp. 152-153159 Id., pp. 152-153160 Cuno, 2008, p. 10161 Miles, 2008, pp. 328-329
42
the Nefertiti Bust are so iconic because they’ve become known and adored in their Western
museums.162
A third critique in the home culture debate deals with the continuity of
cultures. Many writers who are skeptic about restitution question whether many of the
items to be returned can actually be considered a creation of the culture demanding the
restitution. After all, many of the cultural objects are hundreds, even thousands of years old
and created in very different circumstances.163 In the most extreme examples, some writers
have come to insinuate that, for example, the Greeks today have too much mixed races to
actually be “true Greeks”.164 But on somewhat more reasonable arguments, some have
questioned the fact that on, for example, religious grounds, the modern Greeks and
Egyptians have simply too little in common with their ancient counterparts.165 But in a
sense, if one can only see the same culture as something that has not in any major ways
changed over time, then one is hard-pressed to find any culture to be continued from the
past.166 All cultures are always in a state of flux, and if a culture needs to be static in order
to be accepted the same culture in the future, then one must in many ways discard the idea
of cultural continuity altogether. In such a way of thinking, culture is something only in the
present (and void of any past or future), and cannot carry on to any future generations. But
that is a difficult view to take, and for example in anthropology cultures are nowadays seen
“as open-ended, contingent, and emergent – processes in history rather than transhistorical
products having more or less coherent identities.”167 Of course, this does not necessarily
mean that, for example, the modern Greeks are the same as the ancient Greeks, but it is
difficult to deny that there is at least some connection.168
In relation to the continuity of cultures, there is the value presented by John
Henry Merryman, called by him ‘essential propinquity’. This is generally an argument for
retention, though in the right circumstances makes a strong case for restitution.169
162 King, 2006, p. 299, 305163 Id., pp. 308-309; Urice, 2006, p. 153164 Reppas, 1999, p. 930165 For example on the Egyptians, see Urice, 2006, p. 153. Regarding the Greeks, this has, however, beencountered by, for example comparisons between language and artistic and scientific traditions, as well as theperceived connection to the same “Greekness”. See for example Hitchens, 2008a, pp. 101-104. See alsoAppiah, 2009, p. 74166 Hart, 1997, p. 157167 Handler, 1997, p. 3168 On arguments supporting the continuity of ancient and modern Greeks, see Greenfield, 2007, pp. 66-67(also on lack of true inheritance of culture); Reppas 1999, pp. 930-931; Hitchens, 2008a, pp. 101-104169 Urice, 2006, p. 153
43
According to Merryman, there are certain cases where the cultural property in question has
such an important meaning to a specific culture, that there is an imperative to return it
despite any competing reasons for retention. There are two criteria for determining such
propinquity: that “the culture that gave the object its cultural significance must be alive”
and that “the object must be actively employed for the religious or ceremonial or
communal purposes for which it was made.”170 However, if these criteria are not met, such
a necessity for restitution is not there, and it is very hard to claim the return of such objects.
Merryman’s argument (from his internationalist perspective) is that usually there is no
additional value to be gained from the cultural property being returned to its place of
origin, and so such an action is without basis.
The relics of earlier cultures in Egypt, Greece, China, and Mexico have no contemporaryreligious, ceremonial, or communal function. People who live in those nations today mayplace a high value on relics for other reasons, but the use for which they were created is notamong them. The specific cultural value of the relics - for example, as testimony of the wayof life of a vanished people, as great works of the art of a specific time and place - isindependent of propinquity.171
4.2. Context
One argument for the restitution of cultural property, still somewhat related to the home
culture argument, is that the objects are better appreciated in their original context. This
argument is best applied to large pieces of art that have preferably been meant for the
outdoors, such as the Parthenon Sculptures. The opposing side usually refers to the
comparative context brought by such universal museums as the British Museum. Speaking
about the Parthenon Sculptures, Dorothy King sums up the different sides:
Some xenophobic Britons claim that the Elgin Marbles can only be appreciated in Britainwhich is perhaps as extreme as the claim that they can only be appreciated in Greece. TheBritish Museum’s Trustees and Director argue with more sophistication that the ElginMarbles are better seen in the context of other civilizations and cultures, such as theEgyptians, Syrians and Chinese, in the Museum. The Greeks think that the Elgin Marblesare better seen in context in Athens, within the framework of the city that once created theParthenon.172
Neither side can completely dismiss the other one’s argument as being
baseless. Certainly there is something to be gained from comparison, just as there is
170 Merryman, 1988, p. 497. See also King, 2006, pp. 307-308171 Merryman, 1988, pp. 497-498172 King, 2006, pp. 298-299
44
something to be gained from the physical connection to the object’s origins – or perhaps
rather something lost without such a connection. King, however, does not agree that any
understanding is lost if the Parthenon Sculptures are not in their original place in Athens.
On the one hand, “[s]ince we are no longer pagans who worship the Olympian gods,
neither we British nor the Greeks could ever fully understand the Parthenon and interact
with it in the way originally intended”, and on the other hand, “[m]odern Athens ... is not
the context in which the Parthenon was produced; the city shares the coincidence of the
same geography, but neither the same culture, nor the same religion.”173
On why the universal museum is a better context, King argues: “[m]useums
are often a better place to study art because there, under one roof, are works from many
countries and many periods, and one is able to compare and contrast them.”174 However,
even she herself states that, even though a universal museum is apparently preferred, it is
certainly not the only possible venue for appreciating such pieces, and that they indeed do
have value wherever they might be displayed.175 One critique is voiced by William St
Clair:
But, in any case, the idea that a museum in a northern country is the best context in whichto appreciate an ancient monument such as the Parthenon is absurd. As a friend of minefrom Eastern Europe said when she heard this line being offered on television by theprevious British Museum director. Is he saying I cannot appreciate the Alhambra by goingto Spain to look at it because there are no Greek temples nearby? Is he suggesting that partsof the Alhambra should be broken off and sent to museums which have strong collectionsof Chinese art?176
But a different counterargument comes from critique of the idea of the universal museum.
For one, they have been accused of being a form of idolization of the imperialistic past of,
for example, Great Britain,177 but another critique is that the so-called universal museum of
today, which claims to adhere to the ideal set already in the Enlightenment, does not
actually follow those principles.
The world's art, so the argument ran, should no longer be the private preserve ofaristocracies. The general public too should be given some experience of the greatest
173 Id., pp. 308-309174 Id., p. 312175 Id., pp. 312-313176 St Clair, 2006, pp. 94-95177 Id., p. 302. On the other hand, King argues, ”the Greeks themselves have turned the Parthenon into asymbol of Greekness that represents their own ’glorious’ past, the time when Athens had a great Empire,when the Athenians subjugated fellow Greeks, slaughtered and crucified those who objected.” See also StClair, 2006, pp. 66-68
45
artistic achievements of the ancient and modern worlds, the originals of which were mostlyin private palaces or in galleries in faraway countries. This genuine attempt to widen accesswas done, in the case of sculptures, by plaster casts; in the case of paintings, by havingprofessional artists make excellent copies, engravings, and later photographs.178
The current museums, however, break from these ideals in several important points. First
of all, they are “only interested in showing original pieces.”179 In addition, it is noted that
even if all the collections were put together, the sample that they provided would still be
small and unrepresentative of the actual variety of the cultures in the world, and the sample
would be that of masterpieces of such cultures that were attracting to collectors and
treasure hunters, instead of the mundane, but perhaps more representative portrayals of
them, or cultures that the collectors were not interested in.180 Finally, for example Jeannette
Greenfield has stated that calling the British Museum “an international cultural institution
... is to perhaps confuse the nature of an institution with the nature of its collection.”181 To
her, “[t]he British Museum is undeniably a national museum.”182
4.3. “New home culture”
An argument often expressed in cultural property cases of high interest is that the presence
of the object in the country where it has been relocated has also made the object the
cultural property of that state, just like of the country of origin. Prott and O’Keefe call this
the “Place in cultural history” argument.183 The argument has been especially used in the
Parthenon Sculptures case, where, for example, John Henry Merryman states that “[t]he
Elgin Marbles and other works in the British Museum have entered British culture, help
define the British to themselves, inspire British arts, give Britons identity and community,
civilize and enrich British life, and stimulate British scholarship.”184 Especially the impact
of the Marbles on the British arts (especially both visual arts and literature) is often
emphasized, as they have been the inspiration for many of the most notable artists in
Britain.185 For example Michael J. Reppas II has, however, countered these arguments by
saying that the approximately 200 years that the marbles have been in Britain cannot
178 St Clair, 2006, p. 94179 Id., p. 94180 Id., pp. 94-95; Prott & O’Keefe, 1989, p. 850181 Greenfield, 2007, p. 63182 Id., p. 63183 Prott & O’Keefe, 1989, pp. 848-849184 Merryman, 1985, p. 1915185 King, 2006, pp. 299-300
46
possibly compare to the 2,500 years of history they have had with the Greeks.186 He goes
on by saying that “[a]lthough the influence of the Marbles on British art and scholarship
should not be disregarded or belittled by any means, it seems quite plausible that their
continued retention in England may serve more as a trophy from their colonial past, than as
an integral part of their contemporary culture.”187 Prott and O’Keefe also state that “[w]hile
such complexities may justify sharing, they can hardly justify exclusion and other factors
may need to be addressed where exchanges and loans cannot solve the conflict.”188
4.4. Wrongful taking
One of the most important arguments in favor of return is ‘wrongful taking’ or ‘correcting
historical wrongs’ argument. The essence of this argument is that in cases where the object
at hand has been acquired wrongfully, restitution should be seen as a way to correct this
wrong.189 For Urice, obvious cases of wrongful acquisition are cases like theft, while
“[w]orks acquired during periods of colonial occupation, wartime, or periods of civil
unrest, for example, demand special scrutiny.”190 But according to Prott and O’Keefe,
“[t]his argument states that the taking of property (cultural and other) in colonial times was
unlawful in international law and that the property should therefore be returned to the
communities from which it had been illicitly appropriated.”191 However, often there were
non-peaceful means by which the objects were removed that make the acquisition
wrongful, and though there are many who support restoration simply on the basis of the
removal of such objects by a colonial, more commonly there is an abuse of the colonialism
involved that invokes this argument for the writer.192
In fact, a great deal of the cultural property cases that arise are from
situations involving imperialism or colonialism, or a country under foreign occupation.
One such notable case – perhaps the most important restitution case from Africa – is the
case of the Benin Bronzes. In 1897 the British launched a punitive expedition against the
king (the Oba) of Benin, whose men (though apparently unknown by the king) had killed
most in a group from the British Trading Post, who had been sent “with the purpose of
186 Reppas, 1999, pp. 931-932187 Id., p. 932188 Prott & O’Keefe, 1989, p. 849189 Greenfield, 2007, pp. xv, 412, 430-431190 Urice, 2006, p. 147191 Prott & O’Keefe, 1989, pp. 838-839192 Id., pp. 838-839
47
reprimanding him for failure to keep a trading agreement”, even though the Oba had asked
them to “refrain from coming at the moment because of a sacred ceremony”.193 1500 men
were sent to take the capital, found it abandoned and proceeded to pillage the city, taking a
great deal of the vast quantity of items found there. Notable were the hundreds of bronze
items of very high quality, many of which were later sold all over the world in order to
cover the costs of the expedition.194
Although the city of Benin was not strictly under colonial rule at the time,195
overall it is a fairly straightforward case of (excessive) use of colonial power. Still, a vast
majority of the Bronzes are in Western museums like the British Museum and the Berlin
Museum and few – though some – restitutions have been made, so there is far from a
consensus that the wrongness of the situation is so powerful as to necessitate restitution.
Similar arguments have been made in the Parthenon Sculptures case, as well as the case of
the Nefertiti Bust. In neither of these cases, though, was there any violence involved. But
both of them were conducted in imperialistic circumstances, and there have been
accusations of abuse of power.196
In the case of the Parthenon Sculptures, there is in fact a twofold imperialistic
claim. On the one hand, the Greeks, who are considered the culture that created the
sculptures (and so to whom they would belong), were under Ottoman rule. Therefore, they
themselves did not have control over their own cultural property and had no say against the
removal of the marbles. On the other hand, the sculptures were removed by the British
ambassador, at a time when Britain’s power was at its highest and when the Ottomans
viewed the French as a threat against which they needed an alliance with the British – who
then had additional leverage with the Ottomans, in addition to their already powerful
global position.197 Lord Elgin has been accused of gross misuse of his office and stature.
Most of this is based on the official letter, the firman198, issued by the Ottoman authorities,
that – at least in the remaining (also official) Italian translation – left it fairly open what
193 Greenfield, 2007, p. 12194 Id., pp. 122-129. ”Described in an Illustrated London News account of that year as being ‘grotesque’,these bronzes were later hailed as great works of art.” (p. 123); Chamberlin, 1983, pp. 201-203195 Chamberlin, 1983, p. 194196 In general, see Greenfield, 2007, pp. 41-96, on the Parthenon Sculptures; and Siehr, 2006, pp. 114-134, onthe Nefertiti Bust.197 Gazi, 1990b, p. 244; Reppas, 1999, pp. 922-923. For a comprehensive look into the background factors inthe case, see for example St Clair, 1967.198 For the original Italian version of the letter, see British Museum: Firman for Elgin; for an Englishtranslation, see British Museum: Firman translation.
48
Elgin was actually allowed to do. Nevertheless, by most accounts (at least all accounts
favoring restitution, and it is difficult to convincingly argue otherwise), the wording used
in the firman, to erect scaffolding, reproduce the sculptures in drawings and plaster casts,
and take “some [or ‘any’...] pieces of stone with inscriptions and figures”199, meant that
they were allowed to take with them any pieces of marbles they found in the ground while
excavating, not remove anything from the buildings themselves. However, through a chain
of incidents and coincidences, and apparently “more by chance and opportunity than
design”200 (though, according to some, “through a succession of bribes and threats”201),
Elgin ended up removing over half of the remaining sculptures from the structure of the
Parthenon itself and shipping them to Britain.202 What is, however, used as a
counterargument, is the fact that the Ottoman authorities (who were the legal authority in
Athens at the time, even though some may argue it wasn’t for them to decide on the
Parthenon) almost never opposed to the actions, and even if they did, eventually allowed it
to continue. This amounts to the doctrine of tacit agreement, whereby the actions that Elgin
did, although going beyond his original authorizations, were silently agreed upon.203 To
this, some have countered with an incident where the Ottoman authorities did prevent
Elgin’s ship from leaving.204 In addition, St Clair points out:
The military governor received payments in the first year alone equivalent to thirty-fivetimes his annual salary. The governor was given more, and even larger amounts that do notappear in the accounts were paid to officials in Constantinople. ... The paradigm point isthis. No administrative or judicial system can be expected to withstand such a weight ofpolitical influence and money. This is imperialism in action, destroying not onlymonuments but the local administrative and legal infrastructure.205
The case of the Nefertiti Bust relies most of all on the concept of partage.
This was a system “by which a foreign archaeological team and the source nation would
equally divide any objects found during excavations.”206 Although at the time it was a
fairly common arrangement, the partage in the case of the Nefertiti Bust, as well as
sometimes even in general, has been questioned as exploiting of the country where the
199 Greenfield, 2007, p. 53200 Id., p. 61201 Reppas, 1999, p. 921. On the other hand, some claim that bribery was simply “normal practice” and so notcondemnable. See for example Boardman, 2000, pp. 233-234202 Greenfield, 2007, pp. 51-54203 Merryman, 1985, p. 1899204 Reppas, 1999, pp. 949-950. However, the ship did eventually get to set sail (though only over a yearlater), which might negate this argument (see for example Merryman, 1985, p. 1899)205 St Clair, 2006, p. 79206 Merryman, 2006a, p. 9
49
excavation is being conducted which led to its eventual disuse.207 At the time, in 1912,
Egypt was under British colonial rule, but the Nefertiti Bust was in fact excavated by a
privately-funded German excavation team.208 There are two main questions that may be
seen as wrongful in the Nefertiti Bust case. First of all, there were some uncertainties in the
division of the finds: “it seems to be very likely that [the head of the excavation team,
Ludwig] Borchardt, eager to preserve the bust of Nefertiti for Germany, either did not
reveal the find to the Egyptian antiquities authority ... at all or diligently hid the bust
underneath some unimportant antiquities or [the Egyptians’ representative, though French,]
Gustave Lefebvre as an epigraphist and papyrologist did not recognize the importance of
the bust of Nefertiti.”209 Stephen Urice, however, points out that Borchardt did in fact
publish the bust already in 1913 “in an academic journal that would have been widely read
and circulated among Egyptologists.”210 Despite a partial image, Egypt’s antiquities
officials would, according to Urice, known the bust is in Germany and would have known
about its importance, yet made no claim (Urice does not present any factual proof of this,
though211). The second argument regarding the wrongfulness of the removal of the Bust is,
that at the time Egyptians were under colonial rule and had fairly little control over matters
such as the dispersal of its antiquities. The Egyptian Antiquities authority was headed by
foreigners (for a very long time by Frenchmen), and the division in the partage was
overseen by the French Lefebvre.212 Urice, however, argues that partage was a commonly
used and accepted system and in the case at hand, was not notably unbeneficial to Egypt.
Indeed the partage system created under Egyptian law benefited both Germany and Egyptexactly as intended: by offering tangible rewards for the risky investment in anarchaeological expedition, Egypt gained knowledge of its own history and collections ofantiquities acquired through scientific excavation. Germany gained prestige for discovery,valuable objects for its museums, and standing within the international archaeologicalcommunity. Accordingly, it is difficult, if not impossible, to find any historical wrong thatwould be “righted” by return of the bust.213
One final case involving colonialism worth comparing here is the Icelandic
Manuscripts case between Iceland and Denmark, which revolved around a vast collection
207 Merryman, Elsen & Urice, 2007b, p. 414. Recently some scholars have, however, petitioned for thereinstatement of partage, denying the allegations of Western exploitation, insisting instead on its benefits forall parties. See for example Cuno, 2006, pp. 33-34208 Merryman, 2006a, p. 9209 Siehr, 2006, pp. 117-118210 Urice, 2006, p. 140211 Whether it is as certain as Urice claims that the officials would have seen the journal and recognized theBust is not possible for me to evaluate.212 Siehr, 2006, p.132213 Urice, 2006, p. 147
50
of medieval manuscripts – and especially two priceless books (Codex Regius and
Flateyjarbók) – written in Iceland and collected to Denmark (competing against Sweden)
in late 17th and early 18th centuries.214 There are several points of importance here: first, it
has been said that the manuscripts are almost all the cultural property Iceland has, “the
oldest living literature in Europe”215, and the value of the manuscripts (especially the
aforementioned books) is beyond measure; and second, it is one of the few instances where
a return has been successfully agreed upon through diplomatic negotiations. At the time,
Iceland was a colony of Denmark, and had little say in such a campaign launched by the
Danish scholars (and, for the most part, probably did not have much interest, either).216
However, when Iceland gained its independence, the cultural and ideological importance
of the manuscripts had sunk into the national consensus of the Icelanders – they had played
a great deal in the inspiration and justification for the independence campaign.217 What
ensued was a diplomatic and political arm-wrestle between the two nations that lasted for
decades and at times enflamed the relations between them. Those in opposition of the
return said that the manuscripts were in fact pan-Scandinavian and that Iceland would not
be able to preserve them correctly (an argument discussed below). However, the result was
gained purely through diplomatic negotiations without any legal action, and although the
solution meant dividing the collection, this ensured not only that both the nations would be
pleased with the result, but that by making sure that the scholars in each nation had steady
access to the collections in each nation, the spirit of collaboration would continue. It also
means that the Icelandic people can perhaps feel some sense of reconciliation with the
cultural property that had been missing for over two centuries.218
4.5. Ownership
There is one strong way, in a sense, to counter the wrongful taking argument (as well as, in
essence, any argument), which is what Prott and O’Keefe call the “Ownership” argument:
214 The books are medieval saga literature of Iceland and include some of the only surviving pieces of thefamous mythologies of the age. The collection has been named after the Icelandic scholar Arní Magnússon,who was responsible for the physical collection of the majority of the manuscripts, scouring for them in themost unlikely places all around Iceland (including such used as padding in clothing (Magnusson, 2007, p.3)). Magnússon had a chair in the University of Copenhagen, to which he bequeathed all the manuscripts hehad collected (at least those that had survived the Great Fire of Copenhagen). For a full history of theManuscripts (including the restitution debate), see Greenfield, 2007, pp. 13-40; Magnusson, 2007, pp. 1-4.215 Magnusson, 2007, p. 3216 Greenfield, 2007, p. 13217 Magnusson, 2007, pp. 3-4; Greenfield, 2007, p. 19218 Greenfield, 2007, pp. 13-40
51
A simple argument made by the holders of cultural property being sought by its country oforigin is to rely on the status quo. Institutions in collecting countries have possession, haveownership according to their own domestic law and according to their view of internationallaw. Why should they then hand over these goods?219
The argument, as stated above, relies on the status quo.220 Of course, the laws (especially
domestic laws) do support this stance, and there is little other states can do if the
withholding country refuses to return the object or even cooperate altogether (there is, of
course, always the possibility of raising a domestic case in the holding country – and on
(rare) occasion such a case may even be successful).221 There are very differing views on
what the international law in the matter is, whether there is customary law and whether it is
binding. While the retentionist argument is, of course, that there is no customary
international law to compel return (at least in cases from prior to 1970 – the year of the
Unesco 1970 treaty), some have argued that such a custom has emerged.222 In the case of
institutions like the British Museum, there are also laws in place that make it very difficult
to make such a return, even if the museum itself would so wish to do. In Britain, such an
action would apparently require an act of parliament.223 The other counterpoint against the
ownership argument is that even though the law may be on their side, the moral argument
has, or should have, considerable weight – and if the law is against morality, then often the
law isn’t considered just.224 Of course, a moral argument is always to some extent
subjective – and as such debatable. Still, it can also be said, that “[t]he very nature of the
question of restitution calls for opposing moral law to the stricto senso juridical one.”225
4.6. Preservation
Most, if not all, would surely agree that the most important thing in regards to cultural
property is the preservation of the objects (unless talking about very specific types of
objects like human remains or objects with ritualistic or other use that are meant to be
consumed – in this case opinions vary more). As an argument, it is almost exclusively used
to support the retention of cultural property. Prott and O’Keefe list Conservation as an
219 Prott & O’Keefe, 1989, p. 844220 Id., p. 844221 Reppas, 1999, pp. 945-946222 Id., pp. 958-970223 Greenfield, 2007, pp. 103-110224 Prott & O’Keefe, 1989, pp. 844-845225 Gazi, 1990a, p. 131
52
argument for retention,226 and in the value model of Bator, the Preservation value is a
fundamental one.227
The most usual type of preservation argument is that the source nation does
not have adequate facilities and resources to take care of the objects.228 This can, of course,
be a legitimate concern and needs to be seriously considered. However, there are many
responses to such a claim. First of all, “it is argued that this is now no excuse for non-return
since such conditions can be provided, either in existing institutions, or by way of aid from
the holding country, or from an international organization.”229 Also it is questioned
whether such sophisticated conservation techniques are needed “since many of these
objects originally came from a tropical environment and were conserved by local
craftsmen long before their removal from the country of origin”, although there is always
the possibility that the exposure to the new conditions has made the item more susceptible
to decay in the original conditions.230 Another important way the conservation argument is
used is not so much about the preservation of the object but rather its security. There have
been occasions of theft soon after the objects’ restitution, for example, ”it has been
reported that objects returned to Zaire from Belgium [in 1976] have reappeared on the
international market.”231
The greatest risk in this argument is that it is used as an excuse from
considering any restitution claims, as very few institutions can match the facilities of, for
instance, the British Museum. In this way, it could always be argued that in restitution
there is a greater risk to the object than at the current location, and that the status quo
should be retained. There is a high risk of imperialism in this kind of thinking, since the
Western states that retain these objects are in a notably better financial position than many
of the countries claiming restitution and can probably stay one step ahead of most of the
countries of origin, in terms of preservation capabilities. However, even if a state has
weaker facilities for conservation of cultural property, it doesn’t mean the facilities aren’t
226 Id., pp. 847-848227 Bator, 1982, pp. 295-298228 For example in the Benin Bronzes case, the British Museum eventually backed out on a loan of an ivorymask it had already agreed upon with Nigeria, saying that the item in question cannot leave its carefullycontrolled environment. To the Nigerians this seemed disingenuous, as in Nigeria was the original placewhere the item had been made and stored, while the British Museum countered that it was the worst possibleenvironment to begin with. (Chamberlin, 1983, p. 204)229 Prott & O’Keefe, 1989, p. 848230 Id., p. 848231 Greenfield, 2007, p. 410; Hallman, 2005, p. 215
53
good enough.232 And, as already stated, one possibility is that if the source country doesn’t
have proper capabilities for preservation, the other state could support them.233 After all,
when considering things like justice, one cannot only consider the present but also the past
is to be taken into consideration, and if the status quo is to be preserved, then the future
must also be in consideration.
As usual, the preservation argument has been actively used in the Parthenon
Sculptures case. The biggest problem in regards to sending the marbles to Athens has been
the intense air pollution the marbles left in the Parthenon have suffered from.234 Acid rains
have dissolved a lot of the surface remaining marbles and the ones taken by Elgin have a
distinct difference in level of preservation (of course, Elgin took those best preserved to
begin with).235 While this was a very legitimate claim some decades ago, in recent times
there has been a significant change in circumstances that question this argument. To begin
with, the city of Athens successfully took steps to bring down at least some of the pollution
levels in the city. The real difference is, however, the construction of the Acropolis
Museum which was finally finished in 2009. This is where the marbles would now be
situated in, in a dedicated space under expert care (that cannot be said to be notably worse
than that which the Sculptures receive in the British Museum), so it could not be claimed
that the Sculptures would be in any more danger there.236 In this way, the claim acts as a
valid argument for retention up until a certain point, but for future retention has lost much
(if not all) of its basis. Often the argument also goes, that if Elgin wouldn’t have removed
the Marbles for the British, someone else – quite likely the French – would have.237 The
same argument was in use already by the French in the invasion of Italy in the end of the
18th century.238
In addition, the large Western museums themselves do not have a perfect
track record of safe preservation of the objects. Even regarding the Parthenon Sculptures in
the British Museum, it has become revealed that in addition to the damage done in the
232 See for example Gazi, 1990a, p. 132; Goepfert, 1995, p. 514233 Prott & O’Keede, 1989, p.848234 Reppas, 1999, pp. 936-938235 King, 2006, p. 305-306;236 Reppas, 1999, pp. 936-937. The idea of situating the Marbles anywhere other than physically back to theParthenon (even if they would be within view of it) does, however, raise other objections regarding themeaningfulness of such a relocation (from one museum to another; this is discussed further in chapter 4.9.). Ithas, however, been argued that the way the Marbles are placed in the British Museum also distorts the viewand understanding of the Marbles (Gazi, 1990b, p. 246)237 Merryman, 1985, pp. 1905-1906238 Merryman, 2005, p. 15
54
extraction phase, there has been great damage inflicted upon them during their stay in the
British Museum. In 1930, the marbles were being moved to a new location in the Museum,
the Duveen Gallery, funded by the now-infamous arts dealer Robert Duveen. During this
project, Duveen had the sculptures scrubbed of their rather brown patina, so as to adhere to
the image of whiteness the general public associated with ancient marble statuary (a
picture which was, in fact, false, as even at the time experts knew that in ancient times the
statues had been painted with bright colors)239. This was done with methods that were even
at the time coarse, at times even removing the original sculpting marks (and of course the
patina which would hold important trails for modern researchers to study, for example, the
paint used) and did damage that, according to some, “cannot be exaggerated”240. The job
was not finished, however, and some of the marbles still have borders between the
scrubbed and unscrubbed surfaces. After the damage was understood by the museum staff,
it seems that the whole affair was also covered up as best as possible, only to be revealed
as late as 1984 by exerts from a curator’s diary.241 On the other hand, Dorothy King has
argued that similar techniques have been used in Greece until much later, and that the lack
of openness makes it much more difficult to know what types of methods the Sculptures in
Greece have been cleaned with:
The British Museum has to disclose information about the Parthenon Marbles in Londonunder the Freedom of Information Act. There is no such law in Greece, and curators havenot been forthcoming about past cleanings of the Athens marbles, so we will never knowwhat was done to them over the years. We only know that the Greeks continued to ‘clean’ancient sculpture with steel chisels long after the British abandoned this technique as tooabrasive.242
4.7. Accessibility, ambassador
An interesting point of discussion in the cultural property debate relates to – although is
clearly distinct from – the discussion about proper context. A common claim by those in
support of the universal museums is that in such a museum, the objects are seen by far
more people than in their original context, and so also educates the public about art from
239 St Clair, 2006, p. 82 (and in general, pp. 82-94)240 Reppas, 1999, p. 938241 Id., pp. 938-944. On the other hand, some claim the damage done at this point has been highlyexaggerated by William St Clair who first wrote about them, that his account was erroneous and that theaccount was never covered up like he claimed. See Jenkins, 2001; Boardman, 2000 pp.241-257.242 King, 2006, p. 307; on her observations regarding the condition of the Athens marbles, and somespeculations about aggressive cleaning methods based on the “surprising, even shocking” whiteness of themarbles there, pp. 306-307
55
outside their culture and knowledge, inspires future art and research, and, probably most
importantly, advances cultural coexistence and collaboration. On the other hand, the other
side argues that in the West, the pieces are only seen by a limited, well-doing few (who
would usually also be able to afford to visit them anywhere else), and such a location
excludes a majority of the people in the world, especially those in the poor Third World
countries where the pieces originate from. This is a many-sided argument, and is often
infused with other arguments. In the value-based categorization, Urice lists the value of
‘making art known, visible and accessible’, which is very similar to the ‘art as good
ambassador’ value.243 Prott and O’Keefe also have the ‘access’ argument.244
Of course, the argument about the objects working as a cultural ambassador
is applicable to all restitution cases, and in itself does not differ from case to case. The idea
is that when an art-rich country lets its art spread into museums around the world, it
“stimulates interest in, understanding of, and sympathy and admiration for that country.”245
In addition, “an equitable distribution of a nation’s cultural property also contributes to a
breakdown in parochialism and builds mutual respect and admiration for other cultural
traditions.”246
In many of the cases under comparison here, the argument has been made
that the bringing of the items into the Western museums is what has made them so famous
and valuable and iconic in the first place (as has already been mentioned). And the boom
hasn’t only included the specific cultural objects, but all the cultural property of the culture
which has produced them. Through the acquisition of these objects into the great museums,
it is said, the ancient Greeks and Egyptians (and any other such cultures) have gained
newfound prestige and respect for their achievements.247 For example, when the Parthenon
Sculptures became available in Britain, “[o]ne result was that Greek superseded Roman art
as the ideal, both in high and in popular culture.”248 Another result, according to J.
243 Urice, 2006, pp. 148-151, 154244 Prott & O’Keefe, 1989, pp. 845-847. Many of these values are represented in the 1976 UNESCORecommendation Concerning the International Exchange of Cultural Property: “the circulation of culturalproperty... is a powerful means of promoting mutual understanding and appreciation among nations. [A]systematic policy of exchanges.., would not only be enriching to all parties but would also lead to a better useof the international community's cultural heritage which is the sum of all the national heritages.” (Merryman,1998b, p. 11, quoting the 1976 UNESCO Recommendation Concerning the International Exchange ofCultural Property, Nov. 26, 1976, preamble)245 Bator, 1982, p. 306246 Urice, 2006, p. 154247 King, 2006, p. 299248 Merryman, 1985, p. 1908
56
Rothenberger, was that the whole attitude towards antiques changed: they were no longer
seen as primarily decorative, but rather as educational and public objects.249 Merryman
argues in similar lines, saying, that “[b]y their removal to London and exposure in the
British Museum, they have brought admiration and respect for the Greek achievement” and
that “[i]n the most important sense the Greek cultural heritage has been preserved,
arguably enhanced, by the British acquisition and display of the Marbles.”250 Similarly, a
newfound boom of Egyptology coincided with the publicizing of many of the most
important Egyptian artifacts, as has been mentioned before.251
In a way an even larger impact was created by the Benin Bronzes. According
to Neil MacGregor the Bronzes “did more than anything else to change European
perceptions of Africa.”252 Once they became revealed – and clear that they were, in fact,
African (and not, for example, from Atlantis, as some speculated)253 – “a whole set of
stereotypes collapsed; a whole set of hierarchies disintegrated”254 and African culture
overall became appreciated as more than just that of primitives and inferior to the
Europeans.255
There are also advantages still to be gained. According to Bator, “[g]iving
foreigners a taste of a nation's art by allowing export will attract foreign scholars, students,
and tourists to visit that country and study its art; this can in turn stimulate and enrich that
country's intellectual life.”256 The benefits aren’t only economic, or national, as “a more
cosmopolitan learning and better international understanding result from exposure to the
works of other cultures.”257
Finally, there is the question of access (or distribution). This can be
understood in several ways. Merryman explains this principle in general terms: “that all of
mankind has a reasonable opportunity for access to its own and other people's cultural
achievements.”258 Most often the argument is understood as maximizing the amount of
people that can see the pieces in question, for artistic reasons, and by the accessibility for
249 Id., 1908250 Id., p. 1913251 Miles, 2008, pp. 328-329252 MacGregor, 2009, p. 51253 Id., pp. 51-52254 Id., p. 52255 Greenfield, 2007, pp. 410-411; Klug, 2010, p. 722; Chamberlin, 1983, p. 194256 Bator, 1982, p. 306257 Merryman, 1988, p. 506258 Merryman, 1985, p. 1919
57
scholarly research – because “[p]resumably, we preserve art so that it can be seen and
known and studied, so that it can exercise its power over us, so that it can add to our store
of knowledge.”259 It is, naturally, important that the pieces of cultural property don’t just
lay unused and unseen in storage. The argument is usually given in favor of retention of
the objects: where they are being held, far more people will be able to have access to them,
because of either the popularity of the location overall (for example, as a tourist hub – like
London), or as a safe, secure and accessible location to visit, or due to the way the supply
of cultural property is handled in the other country (how they are held in storage (or on
display), accessibility for scholars, bureaucracy). Especially in regards to the British
Museum these arguments are often deployed, speaking of the centrality and safety of
London, and its openness for scholarly research. For example, Dorothy King recites her
personal experiences of difficulties when studying Greek archaeological sculptures in
Greece,260 while the Marbles in the British Museum “could not be more accessible than
they are now.”261
These last-mentioned arguments have received lots of strong criticism.
Critics claim that these ideas are merely nationalist arguments disguised in internationalist
rhetoric, and in fact maintain the imperialist attitude that was responsible for receiving
these items in the first place. It is also said, that such an internationalist view “advances the
distrusting view that antiquities are the property of all humankind for both highly-
developed and under-developed nations, but safe for display only in westernized nations”
(dealing also with the protection argument) and that “by forcing art-rich nations to
‘disperse’ their cultural assets, ‘western’ nations are essentially stealing.”262
Another problem, perhaps an even more important one, is “that all the
museums that fall into the ‘universal’ category are in the Western States.”263 Such a
location excludes all the poor people around the world and especially those from Third
World countries (where the objects often originate from) and “not one is easily accessible
to scholars in developing countries.”264 This means that scholars from the items’
originating country are hindered in the research of their own culture. Any bad relations of
the museums currently holding the items with the items’ country of origin “could in the
259 Bator, 1982, p. 299260 King, 2006, pp. 304-305261 Boardman, 2000, p. 260262 Klug, 2010. p. 720263 Prott & O’Keefe, 1989, p. 846264 Id., p. 850
58
long run seriously impair the opportunities for research and collection abroad.”265 If,
instead, good relations were upheld (through restitution and cooperation projects), it would
be an advantage for both the parties (and the public overall through better research).266 It is
often added that those in the rich Western countries would instead have much better
prerequisites for seeing the objects in their source nations, while there also would be the
chance for the locals to see the items.267 Elazar Barkan also disputes that the Western
museums would be so much more open in their collections, saying instead, “that major
museums hoard, and deny access to, multitudes of objects in their basements.”268 Finally, it
could be argued that where the tourists now flock to see certain high-profile cultural
objects in a museum in one place, if the object were transferred to a different (the original)
location, some, if not most, of those tourists would go see them in the other location.
To be considered with the values relating to scholarly and other such access
is also one interesting point of discussion relating to the Rosetta Stone,269 one which here
could be called the usefulness argument. Regarding the Rosetta Stone, there have been –
often as a side-note discussing other cases – many mentions of its past contribution to
science, as it was the key to understanding Egyptian hieroglyphs. The interesting thing is
that what this past importance means for authors in regards to its allocation. King, arguing
against the return of the Parthenon Sculptures, says that because of its importance in
unlocking the hieroglyphics and giving access to “several thousand years of history and
ancient culture in Egypt”,270 there is a much better case for restitution. It is, King
apparently argues, the link between modern and ancient Egypt, while the Parthenon
Sculptures (not even being the best ancient Greek sculpture available)271, have no such
meaning.272 On the other hand, Christopher Hitchens, arguing for the return of the
265 Id., p. 844266 Id., pp. 843-844 (the ”dynamics of collecting” argument)267 Id., pp. 846-847; St Clair, 2006, pp. 94-95. Prott & O’Keefe also argue that ”[i]f universal museums areessential, then there should be one on at least each continent, not all concentrated in the same socio-culturalarea.” (p. 846)268 Barkan, 2002, p. 31. The same is said by Patty Gerstenblith: “However, the museums of North Americaand Western Europe are also filled with art works and antiquities, which are often in storage, displayedoccasionally, sometimes uncatalogued and not necessarily accessible to either the general public or forscholarly research. This may well be part of good museum practice, but museums in archaeologically-richcountries also have reasons for what is displayed or not, and for keeping excavated material in the region, andthey should not be singled out for practices that are normal elsewhere.” (Gerstenblith, 2001, p. 209)269 On the history of the Rosetta Stone as well as arguments for retention, see Shuart, 2004.270 King, 2006, p. 310271 Id., p. 305272 Id., p. 310. King does not, however, seem to actually endorse the return – stating only that ”on purelytechnical grounds” the return would make more sense that the return of the Marbles, but implying that otherfactors do not support such an action for the Rosetta Stone either.
59
Parthenon Sculptures, states that “[t]he Rosetta Stone belongs to humanity273, in that it
helped the world decode a script that is no longer in Egyptian usage, and is as well off in
the British Museum or in the Louvre, or, if chance had so dictated, in the national museum
in Cairo.”274 Hitchens draws on the fact that it doesn’t have any inherent meaning for the
current Egyptians, and was utilized by the world in collaboration when solving the
hieroglyphs, so there is no need for its return.275
Stephen Urice has also hoped to raise a new value that is related to that of
access: ‘protecting the stream of creative expression’.
Living artists rely on and react to their predecessors; they create new works in the contextof the creative expressions. As the individuals who maintain the ancient tradition ofcreating cultural heritage, they have interests that are entitled to special consideration incultural property discussions.276
There are many types of artistic and cultural endeavors that require access to such creations
of the past.277 To support the continuation of such creativity, these artist need to be given
access to pieces that might not be quite as accessible otherwise. As an example of this, he
raises a case regarding the Nefertiti Bust, the work called The Body of Nefertiti. This was a
case of “appropriation art”; that is, not merely using earlier works (and other objects) as
inspiration but incorporating them in the new work.278 In 2003 two Hungarian artists used
the Bust as basis to create a bronze figure – the rest of the body – proportionate to the bust.
In the same year, the sculpture was taken to the Egyptian Museum in Berlin, and for a
short while the head was attached to the body, to create a complex installation piece,
including a “full” figure of Nefertiti. The Egyptian officials’ reaction, however, was
extremely negative, culminating in the head of Egypt’s Supreme Council of Antiquities
proclaiming that the head of the Berlin Museum (and his wife) would be banned from all
future excavations in Egypt, and that any Egyptian officials should not cooperate with
273 In accordance with the basic idea of cultural internationalism, as opposed to the cultural nationalistic ideaof the piece belonging to the Egyptian nation.274 Hitchens, 2008b, p. xxii275 The argument of course follows that the Parthenon Sculptures, on the other hand, do have such meaning –directly conflicting the view held by King. These arguments about the Rosetta Stone are also made by Shuart,2004, pp. 695-697276 Urice, 2006, p. 156277 And, in fact, art is always based on inspiration from past art (even if the new piece is a kind of antithesisto the old). Id., pp. 156-157278 Id., pp. 157-162
60
them in any way. In other words, then, the piece wouldn’t have been allowed such usage in
Egypt, and the stream of creative expression would have been halted.279
4.8. Domino effect
A kind of last-resort argument, yet also one that tends to be applicable in all cases (and is
often voiced, especially by those speaking on behalf of the universal museums), is the
‘need to maintain Western collections’, or ‘domino effect’ argument.280 Urice speaks of the
‘floodgates concern’.281 Many of those arguing for the retention of cultural property,
especially when speaking about very high-profile items like the Parthenon Sculptures and
Nefertiti’s Bust, have expressed a fear that if such items were made to be returned, this
would set a precedent of restitution, as a result of which “any country who owns and
displays a work originating from another country would be subject to the claim of superior
title by the country of origin”.282 The result would be that a high-profile return (like that of
the Marbles) would result in “the universal removal of major acquisitions of the world’s
museums” and “museums as we know them today, will be destroyed completely.”283 Even
accepting some smaller-profile requests might accomplish this, as such actions could cause
a flood of requests to which the museums would no longer have an acceptable reason for
denial.284 Perhaps even “the return of ... one object will lead to an uncontrolled and
uncontrollable set of demands for return.”285
This argument, however, has been refuted by the opposing side in the debate.
Some argue that there is no tenability whatsoever in this claim. They say that since, for
example, “the British Museum has already returned some objects to countries of origin ...
this seems a strange argument.”286 It is extremely rare (and not very credible) that such a
279 Id., pp. 162-165. This is, of course, one important value amongst many others, as long as the piece itself isnot harmed. There was no physical damage to the Bust during the process, but for example theaforementioned head of the Antiquities Council, Zahi Hawass, called the piece “a ‘degradation’ of the Bust,created in wanton disrespect’”. Whether this sort of “immaterial” damage is to be included in such anevaluation is, however, a matter better suited for consideration elsewhere.280 Prott & O’Keefe, 1989, pp. 849-850281 Urice, 2006, pp. 154-156 (and lists yet another name used for the argument (coined by Daniel Shapiro),“the pandora’s box”)282 Reppas, 1999, p. 978. See also Ounanian, 2007, pp. 122-123283 Id., p. 978284 Prott & O’Keefe, 1989, p. 849285 Urice, 2006, p. 155286 Prott & O’Keefe, 1989, p. 849. The same argument is made by Greenfield: ”such ’returns’ have takenplace under different guises in the past and that it is by no means a novel occurrence setting into motionunacceptable precedents.” (Greenfield, 2007, p. xiii)
61
demand for all items in foreign lands to be made,287 and when instead only one item is
claimed for return, each claim will be handled on a case-by-case basis. And since in each
situation the facts are different, there will not be a universal precedent set.288 Others do,
however, say that what is established is – while not a universal precedent – “a very narrow
precedent,”289 for example, in the case of the Parthenon Sculptures, a precedent focusing
“solely upon immoveable property, not moveable property”290 because the sculptures are a
part of the larger structure of the Parthenon and never meant to be removed or transferred
from place to place.291 Or, alternatively (and this would be a more common practice), a
precedent focusing on the circumstances of the removal of the object. Where there have
been morally wrongful means of acquiring the objects – for example deception, theft or
pillage – there would be an obligation for return, while in a case where the objects have
been acquired through legal and agreeable methods, no such obligation would be born.292
4.9. Integrity
One more argument to consider is the Set Value293, or, in other words, the integrity of an
object, collection or monument. As Stephen Urice puts it:
Some objects of cultural property were intended to be independent works; others wereintended to be components of a complex work. In situations in which an object of culturalproperty derives from a complex work or is part of a series or set, this set value is arelevant consideration in weighing a demand for return.
When a piece of cultural property is divided, “each [piece] has less cultural value when
separated than as a unit.”294 The Set Value argument has been used for either side of the
debate. John Henry Merryman has categorized the argument as internationalist, which has
been criticized by Ana Sljivic. For her, “it is likely that integrity would, in many instances,
lean in favor of location of the object in the source nation.”295
287 It is not unheard of, though – for example in 1965 Greece made such a demand. (King, 2006, p. 296)288 Prott & O’Keefe, 1989, p. 849; Greenfield, 2007, p. xiii289 Reppas, 1999, p. 979290 Id., p. 979291 Id., p. 979292 Greenfield, 2007, p. xiii293 Urice, 2006, pp. 147-148294 Merryman, 1988, p. 503. This problem today is accentuated in the countless illegal excavations beingconducted around the world, each irreplaceably destroying archaeological information due to the lack ofdocumentation. According to Merryman: “[u]nless removal is accompanied by elaborate documentation ofthe site, it leads to the irreparable loss of cultural information. It is a form of destruction, a kind ofvandalism.” (Id., p.503)295 Sljivic, 1998, p. 414 footnote 156
62
The Parthenon Sculptures are, once again, a prime example of the Set Value
argumentation. Not only were they designed as an inseparable part of a yet much greater
building (immoveable cultural property, as stated above), but as a whole they also “tell a
story about religious belief and life in ancient Athens; a story only truly understood when
the frieze is viewed as a whole.”296 When separated, the narrative is broken and the story
the sculptures are meant to convey is missing important pieces. Christopher Hitchens has
compared the division of the sculptures to that of sawing a painting like the Mona Lisa in
half and shipping the two parts into different countries.297 Of course, some have argued
that this unity is unachievable anyways – and so the argument loses much of its basis – as,
“[i]n terms of sculpture, at most half is preserved.”298 Still, one could make a
counterargument by asking that if a sculpture has irreplaceably lost some part(s) of it,
would it be acceptable, then, to divide up the rest of it to different places. However, it is
also true that in terms of the story the marbles have to tell, much of it is lost no matter if
the remaining pieces are together or separate. And it cannot be claimed that in scholarly
terms (in regard to the narrative of the sculptures) much would most likely be gained from
the reuniting, as the research and reproductions have, for the most part, already been made.
The question is more that of aesthetics. However, Andromache Gazi has argued that the
way they are displayed in the British Museum distorts the view and understanding of the
Marbles because it “is a display totally alien to the original placement of the sculptured
panels on the monument.”299 In returning the pieces to Athens, there is also the problem
that they would not be placed back on the Parthenon due to environmental hazards, but
instead in the Acropolis Museum (as mentioned before). This has led those against
restitution to question the meaningfulness of such a return, as in the museum the integrity
of the Parthenon would be no more repaired than they are now.300 Those in favor of return,
on the other hand, claim that in the Acropolis Museum the Marbles are in their original
context, as well as in a more original display.301
The situation is yet slightly different in the case of collections of items.
Where in the case of the Parthenon Sculptures the integrity comes from their original
immovability from the same structure, as well as the narrative they have to tell, the case of
296 Ounanian, 2007, p. 114297 Id., p. 114298 King, 2006, p. 303299 Gazi, 1990b, p. 246300 Merryman, 1985, pp. 1918-1919. See also Shuart, 2004, pp. 675-676; King, 2006, p. 303301 Hitchens, 2008c, pp. 152-153; Greenfield, 2007, pp. 83-84; Gazi, 1990b, p. 246
63
collections (or ensembles) can be more difficult to determine. One could, for example, look
at the case of the Benin Bronzes, where the multitude of items were from the same source,
but have not been treated as a single collection, having rather been dispersed in a multitude
of museums around the world.302 In addition, there are duplicates of same and similar items
– some of which have been the subject of return by the British Museum to Nigeria,
precisely because they have been considered duplicate and, apparently, not a distinct part
of an inseparable set (but rather a loose collection of similar items, but not clearly
possessing separate value as a collection overall).303 A slightly more contested case is the
Nefertiti Bust. Having been found in the remains of the workshop of the sculptor,
Thutmose, with a range of other items, it has been suggested that, should Egypt determine
that the collection and workshop is possible to re-establish in a museum, the set should be
recollected.304 According to Kurt Siehr:
It has long been recognized by archaeologists, art historians, museum curators and evenpoliticians that objects of cultural property should not be dismembered and, if this hadhappened in the past, such a mutilation of objets d’art should be stopped and dispersedpieces of an ensemble should be reassembled.305
Stephen Urice, however, denies that the Bust is a part of a collection, saying instead that it
“is an independent work, not part of a complex work or a series requiring reunification to
achieve full meaning.”306 Still, the majority of his arguments (though not as important as
the first one) against restitution rely more on matters of practicality. According to him, the
idea that all the pieces found in Thutmose’s workshop would be displayed together is
unrealistic: in reality too many of the works found there are uninteresting to non-specialists
(whom can easily access the pieces in the current museums), and displaying the Bust in
such a way would be unpractical because of the quantity of visitors wishing to see it. The
idea of reuniting sets also doesn’t resolve where such a unification should occur.307
302 Greenfield, 2007, pp. 124-125303 Id., pp. 125-129304 Siehr, 2006, pp. 126-128305 Id., 127 (emphasis original)306 Urice, 2006, p. 148307 Id., p. 148. The argument about the reunification not necessarily meaning return (and hence not in itselfworking as an argument for restitution) has also been presented in the Parthenon Sculptures case.
64
5. Other Faces of Cultural Property
The previous chapter explored the arguments presented for the restitution and retention of
cultural property. The debate revealed arguments that are common to many cases, but often
have individual qualities between cases that make generalizations difficult. It also revealed
that for almost every argument, there is a counter-argument, and that it is extremely
difficult to come to any conclusions regarding the optimal allocation of cultural property.
Now, before addressing the application of the structure of the debate, I will shift my focus
to how both cultural property and the debate surrounding it can be used to advance other
agendas, in order to show that these phenomena do not exist in a vacuum, but are, in fact,
inextricably linked to real-world politics. What is shown is a field even more complex than
at first revealed by the debate over restitution, but sometimes hidden in the rhetoric of
cultural property in general.
5.1. Cultural property in history/memory politics
Heritage passions impact myriad realms of life today. They play a vital role in national andethnic conflict, in racism and resurgent genetic determinism, in museum andcommemorative policy, in global theft, illicit trade, and rising demands for repatriating artand antiquities. Decisions about what to conserve and what to jettison, about parenthoodand adoption, about killing or converting or cosseting those of rival faiths all invokeheritage to explain how we feel and to validate how we act.308
Cultural property, for all its emotional and symbolic power (or, as Merryman said, mana),
can be and often is “put to a variety of political uses in a variety of political contexts –
ethnic, regional, and national”309, much like history overall (though it is important to keep
‘heritage’ and ‘history’ clearly separate from each other)310. As has been suggested before,
not all the discussion regarding the restitution of cultural property innocently considers
only the most optimal location of the piece. There are various goals that the actors wish to
attain through either the retention or restitution of the objects in debate.
In fact, James Cuno claims that cultural property overall is a political
construct. This also means that it is “whatever one sovereign authority claims it to be.”311
308 Lowenthal, 1998, p. xiv. It is important to note that Lowenthal is speaking here of heritage in a very broadsense.309 Merryman, 1989, p. 350310 ”History explores and explains pasts grown ever more opaque over time; heritage clarifies pasts so as toinfuse them with present purposes.” (Lowenthal, 1998, p. xv)311 Cuno, 2008, p. 9
65
As something that is central to the identity of the people, Cuno does, however, speak
against the inclusion of antiquities into this category. According to him, such items –
usually made by people without much traditional similarity to the people in the same area
now (sharing mainly just an approximate geographical location) – cannot have such a
meaning to current people other than as a political tool for nation-building (which always
also excludes other cultures that share or have shared the same location).312 On the other
hand, one could argue that if there is a continuity from the people of a culture (even though
the culture itself changes and perhaps is not recognized as the same culture anymore), and
even if the people themselves do not explicitly recognize this connection, there is always
some type of effect a past culture has on the culture in the present.313
In a time of memory laws and restitutions of past atrocities such as the
Holocaust, the restitution of cultural objects can be seen as one such way, among others, to
ameliorate these old wounds.314 However, some have also warned of the risk of the
restitution movement taking “on the trappings of political correctness.”315 As has been
stated, cultural property also has had and continues to have a great role in building a
national sense of identity, and so it is always an important tool for those in charge (and also
gives them the capacity for shaping this identity in the direction they may wish). It is also a
very important form of politics to decide who gets to decide on the cultural property in a
nation. One extreme such example was the destruction of the Bamiyan Buddhas in
Afghanistan. Upon not considering the giant, incomparable Buddha statues part of their
cultural heritage,316 the Taliban went on to destroy this symbol of “gods of the infidels”317
as part of a religious-political purge of all non-Islamic material happening in the nation
(the museums were also razed, one of the greatest iconoclasms of our time).318 But
although they claimed it was purely an internal matter, in addition to this being a
scientifically and culturally important site for the whole world, it could also be considered
312 Id., pp. 9-11313 Klug, 2010, p. 127314 “The demand that nations act morally and amend their own gross historical injustices is a relatively newphenomenon. ... Beginning at the end of World War II, however, and quickening since the end of the ColdWar, morality and justice have received growing attention as international political questions.” (Barkan,2002, p. 16)315 Klug, 2010, p. 721, quoting Solomon, Andrew: Art in Jeopardy in Who Owns the Past? Cultural Policy,Cultural Property, and the Law (Fitz Gibson, Kate ed.), Rutgers University Press, New Brunswick, NewJersey, 2005, p. 239316 Gillman, 2010, p. 12317 Id., p. 9318 Merryman, 2006b, p. 111
66
an ultimate act of declining Buddhists – especially in the East – of access to cultural
heritage of theirs.319
In a sense, this was also an act of building a sense of national identity,
making sure that only the official form of Islam, supported by the Taliban, was to be
promoted in the country.320 However, in its common form, such a use of cultural property
is hardly as destructive, and very ordinary (in fact, it has in some form or another happened
(and is happening) in every nation). An example from Mexico is provided by Merryman:
The National Museum of Anthropology in Mexico City is an example of an extraordinarilysophisticated and effective use of cultural property to instill a sense of national identity andnational pride. Like other culturally diverse nations, Mexico has found it difficult to resolvenation-building problems. ... The Museum attempts to show the Mexican viewer that he ispart of a great nation in which elements of native pre-Columbian and introduced Europeancultures have been combined to produce something important that is uniquely Mexican.Mexicans from remote villages grow perceptibly in stature as they move from room toroom in the Museum, particularly on the upper floor, where the visual anthem tonationalism reaches a crescendo.321
This kind of an exercise is not, however, limited only to Mexico, but can be
seen in any state in the world, any national museum, or anywhere where a choice is made
on what to put on display to represent a nation.322 This exercise does not, however, need to
be a conscious one. As cultural property is chosen to represent the identity of a nation,
some is necessarily also left out, proving that this action of nation-building through cultural
heritage is not necessarily at all as innocent and harmless as it may seem on the surface. It
can be one form of (again, intentional or unintentional) structural discrimination and
oppression, to leave some part of the population out of such a selection, perhaps with the
intention of assimilation (such was also often the case in colonialism – removing the
cultural property of the colonial subject, in order to deprive them of their original
culture)323. The case of the Afo-A-Kom provides such an example (though in reverse); as
319 Gillman, 2010, pp. 12-15. This also once again raises the question of who cultural property belongs to(discussed in the previous chapter). The purely nationalistic claim would be that the Buddhas had been thecultural property of the Afghan people, the statues residing within the jurisdiction of their state. However,“given the continuance of ‘Great Vehicle’ Buddhism in both cultures, Tibetan and Japanese Buddhists mightreasonably think that the Buddhas were more a part of their heritage”, especially since “[i]t is clear that theTaliban didn’t consider the Buddhas to be part of their heritage.” (Id., p. 12)320 It can also be used as a way to promote a certain view of history, or even as pure propaganda. On how theSoviet Union used cultural property in this way, see Grimsted, 2010321 Merryman, 1989, p. 350322 Nation-building through cultural heritage is especially relevant in postcolonial countries. (Pieterse, 2005,p. 175). See also Davison, 2005323 For example, the removal of the Throne of Menelik from Ethiopia by Italy was done with such intentions.See Prott & O’Keefe, 1989, p. 843
67
the outcry against the sale of the objects centered on its fundamental meaning to the tribe
of the Kom people, “to Cameroonians concerned with nation-building, the Afo-A-Kom
episode was at best an awkward event.”324 The history, as represented through cultural
property, is also useful in identifying oneself with such historical antecedents that are seen
as desirable, perhaps with the hopes of gaining some modern day prestige through
historical roots.325
Legends of origin and endurance, of victory or calamity, project the present back, the pastforward; they align us with forebears whose virtues we share and whose vices we shun. Weare apt to call such communion history, but it is actually heritage.326
For example, in the case of the Pergamon altar, held currently in Berlin, both Greece and
Turkey have identified themselves as the descendants of the cultures at the region at the
time. In addition, Turkey has sought to de-emphasize its “imperial, Ottoman past” in order
“to establish Anatolia (that is, the modern geography of Turkey) as ‘the cradle of
civilization.’”327 Furthermore, in general, all of the West identifies itself clearly in a very
specific historical target: “[j]ust like another product of the European Enlightenment, the
‘Nation,’ the ‘West’ has pushed to oblivion ‘the historical time of its non-existence’ and
imagined itself as the descendant of a distant and imaginary antiquity.”328 In Greece, these
kinds of perceived relations to ancient Greeks of Sparta and Athens was also used in order
to oust the reigning Ottomans out in the 19th century.329
The destruction of the cultural property of a nation is an extreme method that
has sometimes been used by conquerors in order to enforce an identity or culture that they
see as fit or useful, or even merely for revenge. Colonial rule was no stranger to such
action, as shown by the actions of Italy in Ethiopia (mentioned in the previous chapter).330
In World War II, as is known, the Nazis could be extremely ruthless, and, for example, in
Poland they “gutted Old Warsaw to obliterate an icon of Polish identity that postwar Poles
speedily rebuilt as a symbol of communal care.”331 In China, such iconoclasm has
324 Id., p. 351325 Harrison, 2013, pp. 141-142. Such nation-building is, however, being challenged by globalization (Id., pp.142-144)326 Lowenthal, 1998, p. xv327 Bilsel, 2000, p. 8328 Id., p. 13329 Lowenthal, 1998, p. 199330 Prott & O’Keefe, 1989, p. 843331 Lowenthal, 1998, p. 26
68
apparently happened over and over again with the changes of dynasties, but most recently
after Mao’s rise into power. But in China, the culture also stresses words over matter.332
The thing about cultural property, of course, is that it can usually be adjusted
to fit any agenda. The French revolution is a perfect example of this – after a phase of
iconoclasm and wanton destruction of all things monarchical, the French actually turned to
use the old symbols and remnants of the ancient régime into symbols of the republic and,
most importantly, the Revolution. This was a nationalization of the formerly private
heritage – a trend that would continue in later generations all around Europe and
fundamentally change the way heritage in general was to be seen and understood.333
Cultural property is a way to alter views of the past. By promoting certain objects over
others, by commemorating certain events in history (with, say, a monument) and leaving
others without mention, is a way to alter the view of history of the public and promote a
world view of choice of those making the decisions.334
Cultural property can also lend itself to purely political uses. For example,
the return of the Crown of St. Stephen from the United States to Hungary in 1977 was
considered to strengthen the socialist government’s claim of legitimacy, which raised
political opposition from politicians and expatriate Hungarians. Similarly, in a return of
cultural property by the Netherlands to Indonesia, the act brought “personal gains for the
politicians who could claim credit for the event; partisan gains for the political group in
power in Indonesia at the time; a stronger cultural property base for nation-building in
Indonesia, and so on.”335 In Britain, Robert Lumley says, the cultural property debate is
strongly political and both the Left and Right use the past as a vital source of
legitimization.336 The political and popularity boost gained from being the person
responsible for the securing the return of an iconic piece of cultural property like the
Parthenon Sculptures would be massive, probably making the person a national hero,
making the restitution movement all the more popular – though also risking politicizing the
matter too far.337 In 2004 in Britain it was suggested that the Sculptures could be returned
332 Id., p. 20333 Id., pp. 63-66334 See in general Lowenthal, 1998; Lumley, 2005, pp. 23-25; Graham, Ashworth & Tunbridge, 2005, pp. 30-31335 Merryman, 1989, p. 351336 Lumley, 2005, p. 17337 Id., p. 351. The same could also be true in reverse in Britain – it is possible that the governmentresponsible for the restitution of the objects could be viewed in a negative light, though with the public beingmore in favor of return than in the past, it might also be seen as a positive thing.
69
to Athens in return for Greece’s vote for Britain in the selection for the 2012 Olympic
Games.338 It is also possible to use cultural property demands to pressure the government
holding the objects in a completely unrelated matter, as Russell Chamberlin claims Nigeria
has done with the Benin Bronzes towards Britain.339
Sometimes the accusation has been made that the debate surrounding cultural
property is used to hide other issues. For example, according to John Boardman, Greek
governments “have been unabashed in stirring up the marbles controversy at various times
to mask other political dilemmas.”340 On the other side of the debate, there are also claims
that as some of the source nations are taking more strict actions against the deporting of
cultural objects they see as the nation’s cultural property, these “heavy-handed techniques
have given commentators the justification they previously lacked to criticize the once-
victimized source countries in the name of the museum community and private
collectors.”341
This use of cultural property in politics has been summed up by Can Bilsel:
[T]he discourse of restitution may gain a new dimension if we cease to considerarchaeological artifacts as mere cultural goods, but acknowledge their role in the modernpolitics of memory. Central to the question of repatriation is not only the legitimacy of theacquisition but the right to associate one’s collective identity with a powerful memory-image.342
5.2. Cultural property and imperialism
It has already been established that many pieces of cultural property in museums like the
British Museum in Western states have been acquired with imperial power. In the history
of cultural property we also saw that the idea of a centralized collection of the most
magnificent art in the world has been an important part of warfare from Rome to Napoleon
and all the way to Nazi Germany. And there is certainly a risk involved in claiming that the
Western universal museums are the best possible placement for the cultural property of
cultures anywhere in the world. It is no surprise, then, that the accusation has sometimes
been made that these museums are upholding an imperialistic attitude or at least a longing
for their imperialistic past.
338 King, 2006, p. 298339 Chamberlin, 1983, p. 206340 Boardman, 2000, p. 258341 Hoffman, 2010, p. 668342 Bilsel, 2000, p. 15
70
A great deal of the first universal museums and exhibitions were quite clearly
imperialistic by nature and method of acquisition. I have already talked about the many
ways in which the colonial hosts exploited and plundered the colonized lands. But perhaps
just as important in regards to the acquisition of cultural property was the indirect effect of
the imperial power. It wasn’t only that in cases such as the Parthenon Sculptures the
representatives of the Empire would have tremendous leverage to pressure or coax the
locals into giving or exchanging the objects, there were also, for example, many cases
where the colonial subjects would present lavish gifts to the Queen or her representatives,
for varying political purposes. For example many objects from India “appeared in the
exhibitions as tokens of loyalty to the heir to Queen Victoria, newly created Empress of
India, rather than examples of Indian manufacturers.”343 The exhibition of such items can
be seen also as show of power of the Empire, and many of such institutions were
outspokenly “Imperial, rather than Metropolitan.”344
The imperialism involved in the acquisition of the collections in universal
museums (both in the way that the empires were able to gather the objects through their
power, as well as the way the objects were often chosen as trophies) does not only mean
that the collections may now uphold some remains of imperialism, there is also an effect
already imprinted on both the receiver and source of the objects. The museum in itself can
be seen as a kind of trophy case, and should the objects be returned, this would not change,
as the objects would certainly not be in their actual use anymore. “Indeed, the repatriation
of heritage objects often comes down to placing them in one’s own museum – an act which
perhaps establishes ownership, but only by reinterpreting cultural things in term of the
ideas of those who plundered them.”345 In addition, there was often another imperial
narrative involved in the acquisition of such objects, where the justification for “the
destruction of the context that gave the objects their original meaning by reconceptualising
them as ‘works of art’ in accordance with post-romantic Western aesthetics.”346
Although, as has been established, often the imperialistic means of
acquisition of cultural property were morally questionable or outright wrongful, as also
343 Barringer, 1998, p.22344 Id., p. 14, quoting Robinson, J.C. (1858): ‘Our national collection’, Athenaeum 1587, 27/3: 403-4, p. 404345 Handler, 1985, p. 194346 St. Clair, 2006, p. 76
71
proven by the reactions of many of the members of the Empire,347 the actions were not
usually (at least technically) illegal by the laws of the time. This fact has been used as an
argument also in current debates about the restitution of cultural property, as without an
illegal act of transfer, the current owners cannot (with very few exceptions) be compelled
by law to return those object. Although this is a valid argument, it also carries a high risk
of justification of past colonialism and upholding the imperialist attitudes of the past.
From the cultural nationalist view it is usually the internationalist that is
imperialistic, and in fact even the whole idea of internationalism may seem as (not-so-
)hidden imperialism. As the nationalist view focuses on the country of origin’s right to its
own cultural heritage, to such a view the idea that a state completely unrelated to it would
not only claim that it is an equally valid place of holding the objects, but actually even a
better one, would be a thoroughly imperialistic idea. It would suggest that such a state is
claiming that it has a better position to determine over the cultural property over the state
of origin. There are also certain allusions to the idea of “the white man’s burden” in the
idea of a benevolence of preservation in the Western states’ collections of colonial cultural
properties.348
The invocation of imperialism is of course also a history-political action.
First of all, it can be that the (at least imagined) stability of the Empire of the past appeals
to people bemoaning the instability of our current age.349 It also cannot be denied that the
European colonizing states were superpowers in the world, something that can hardly be
said in the post-colonial world with new economic powerhouses around the world. This
made the situation for the powerful states much more secure. Secondly, upholding (even if
unintentionally) certain imperialistic traditions means that those in charge have much more
power especially in more indirect ways. Possessing masterpieces of cultural property
means also great financial benefits especially in the form of tourism.
Obviously not everyone agrees about the imperialism of the universal
museums. The internationalist ideology seems to do away with such an idea. For example,
John Boardman talks about the fact that it does not matter where these objects are located,
347 For example, see Barringer, 1998, pp. 21-22 for one example of such opposition, stating that “[t]heseAfrican trophies are unpleasantly reminiscent of the worst phase of British policy.” (Id., p. 22, quotingConway, M. (1882): Travels in South Kensington, London: Trubner, p. 71)348 Barkan, 2002, p. 37349 And, according to Lumley, in the origins of the debate in Britain, cultural heritage was indeed seen as“primarily an attempt to avoid change by recalling nostalgic and romanticized presentations of the past.”(Lumley, 2005, p. 15)
72
because wherever they are, they are fulfilling the purpose of acting as a cultural
ambassador and educating and informing about the achievements of that culture. He denies
it is imperialistic, rather stating that the values advanced by the works of art are
irrespective of their location, whether in place of origin or elsewhere, that art always has
the same, altruistic function.350 In his words: “[w]hen I see the obelisks on the Thames
Embankment and in Central Park I see them not as loot, but as authentic tributes to the
majestic achievements of ancient Egypt, and appreciate them in their quite different but no
less evocative settings.”351 Of course, this does not take into account that to the Egyptian
(let alone to someone with more recent and more personal experience of appropriation of
art) the view might be quite different. This is the view of the British citizen who is the
receiver of the object of art – one whose “own” cultural property is seen very little outside
its national borders. There is naturally a difference to be made between outspoken,
intentional imperialism, and an unintentional, perhaps structural imperialism. But in the
latter case, it can also be difficult to do away with altogether, if one is to still have such
institutions as the universal museums exist.352 And some institutions have taken steps to,
for example, involve the indigenous groups more in the institutions’ activity.
6. From Apology to Utopia
The previous two chapters have revealed a complex debate surrounding the restitution of
cultural property. The cultural property debate is built on two general viewpoints that have
strong principles behind them, and both sides have strong arguments to justify their point
and counter each other’s arguments, at the same time continuing the debate indefinitely.
Although both sides use rhetoric that implies that their point of view is based on the best
allocation of the objects in question, in truth neither side can escape from having real-
world politics infused in them. In order to understand why it seems that the debate is not
leading anywhere, I believe it is necessary to examine the debate in light of the theory of
international law as presented by Martti Koskenniemi in his work From Apology to Utopia.
The same kinds of patterns that define this view of international law also appear in the
cultural property debate. In addition, I believe this comparison reveals that the principles of
350 Boardman, 2000, pp. 257-260351 Id., p. 259352 And it is doubtful if anyone would actually wish for them not to exist, for they nevertheless hold greatbenefits for all humankind.
73
cultural nationalism and internationalism are not, in fact, as separate from each other as
they might appear and claim to be.
6.1. International Law
In From Apology to Utopia Martti Koskenniemi deals with the functioning of public
international law. After legal theorists gave up on traditional ways of justifying
(international) legal order, the descending arguments of law being derived (“descending”)
from a pre-existing system such as from God or natural law, there was a need for new
justifications and reasons for why law was compelling in general. The liberal doctrine,
then, came to try to fill this void. At first, the arguments were on the opposite side of the
descending arguments – they were “ascending”, based purely on the will of the subjects
and generalized from there. However, it was felt that this approach could not fully explain
how those subjects could still be restrained, and it was felt that international law should be
something separate from politics. So, descending elements were yet again added to the
theories. But this also created the problem that the justification was again reliant on the
descending patterns that the writers wished to do away with, which led to a kind of
pendulum swing in the theories, where neither argument could fully satisfy the liberal
view, but the ascending-descending explanations all had the problem of balancing.
Traditionally writers of international law have based their theories on the
foundation of either the doctrine of sources, or the doctrine of sovereignty. The same kind
of dichotomy is visible all throughout international legal argumentation, and in fact makes
international law not so much a legal system as a legal language, a way for the lawyer to
effectively argue any case.353 Or, put another way: “[i]nternational law is a structure of
argument patterns.”354 Each argument or position on one side can be flipped to the other
side, providing for an endless possibility for continuation of the international legal
speech.355
A central theme of the book is the interplay of apology and utopia in
international law. Any viewpoint can be criticized for being either too apologetic (that is,
to simplify, granting too much power and leeway to the actors of international law – the
353 ”... it is not an account of how legal decisions are made – it is about how they are justified in argument.A grammar is not a description of what native language-speakers say in fact – it is an account of what ispossible to say in that language.” (emphasis original) Koskenniemi, 2005, p. 589. See also pp. 566-573.354 Rasulov, 2006, p. 353355 Koskenniemi, 2005, pp. 1-15
74
states) or utopian (being too idealistic and unrealizable in reality).356 The opposition will
then take the position from the other end of the spectrum to justify their viewpoint.
However, this opens it for the criticism on the other side. Basing one’s argumentation on
only one side makes the case too unreliable, as a truly acceptable position requires both
“ideological” and “realistic” (i.e. descending and ascending) support. Any strong case,
then, will require arguments of both types to be successful. But at the same time, the other
side will be using the same arguments as criticism and to make their own point. This leads
to an irresolvable situation, in which either side can keep arguing against the other side
indefinitely.357
Each proposed solution will remain vulnerable to criticisms which are justified by thesystem itself. Morover [sic], depending on which of the system’s two contradictorydemands one is led to emphasize, different – indeed contradictory – solutions can be madeto seem equally acceptable.358
This argumentative cycle, then, cannot be broken from within the language of international
law. External factors must be brought into the decision-making process, in order to
produce a pragmatically plausible solution. This means focusing on the specific context of
the case and applying the facts of the case in order to bring a conclusion to the cycle. In
other words, international legal decisions are always political.359
As noted, this dualism is not limited to only this division of argument types,
but is rather visible all throughout the very foundations of international law, as well as the
theories of it. The view of international law as a language separates Koskenniemi’s theory
from those before that have seen international law as “just” another legal system, and in
fact includes them inside it as part of the use of the language of international law. They,
too, show the inherent dichotomy of the language. For example, each theory has always
based its opening to international law in either sovereignty or the sources of international
law – that is, whether the fundamental workings of the system are to be determined by the
will of the individual states or by the principles set in the sources of international law
(treaties etcetera). Still, merely sovereignty as the basis of international law in fact prevents
the true functioning of the system because it is inherently a violation of sovereign rights
and so doesn’t have to be followed (or, to put it another way, has nothing to oblige the
states to act accordingly and so collapses), and merely the sources as the basis still needs
356 Id., pp. 24-28357 id., pp. 58-69358 Id., p. 69359 Id., pp. 588-589
75
the sovereign states to be the agents, and forgets the real politics that often work differently
than the rules set in the sources.360 In the same way, when looking at the definition and
birth of states, the starting point has been either the recognition of other states, or certain
characteristics of a state, set in the sources. But neither approach works alone.361
In here, too, we see apology and utopia in play. On the surface, the doctrines
of sovereignty are clearly apologetic, as they are reliant on the will of the states, and alone
would mean that anything the states say goes (as said, resulting in a lack of true
international law because the definition of sovereignty requires that the will of the
sovereign cannot be bound). The doctrines of sources are clearly utopian, because alone
they are mere wishes, and the reality does not actually perfectly follow the principles and
regulations defined in the sources (and alone would also result in a lack of true
international law because the sources require the cooperation of states). But then again, on
the one hand the idea of pure sovereignty is utopian as it is not possible to explain all
sovereignty merely by factors of reality, and on the other hand for example the application
and interpretation of the sources require some actors, bringing yet again the accusation of
apology into play.362
6.2. Cultural Property debate
So, in short, international law is not in actuality like any legal order (that offers solutions to
(legal) issues), but rather a language – to give the tools for the actors to argue in any case.
This also applies to cultural nationalism and internationalism: although they are presented
as solutions to the problems of where to situate cultural property, in reality they are merely
the tools for argument regarding cultural property and cannot by themselves act as a tool
for deciding where a cultural object actually belongs.363
If one looks at the different arguments in the cultural internationalism versus
nationalism debate, it is not difficult to discover a similar structure of apology and utopia
in it. Perhaps in the clearest way, the nationalist argument is the ascending and so the
apologistic one, while the internationalist argument is the descending, utopian one – after
360 Id., pp. 573-588. For a more in-depth analysis, see Id., pp. 224-302 on sovereignty and pp. 303- 387 onsources.361 Id., pp. 224-302362 Id., pp. 300-303, 385-387363 Of course, neither cultural nationalism nor internationalism is, or indeed can be, any more compelling anargument in itself. In decision-making, the weight of an argument is a matter of choice – they don’t have anyinherent hierarchy by themselves.
76
all, the deciding factor for cultural nationalism is the will of the states, while cultural
internationalism uses argumentation regarding “higher” principles. Or, as put by Ana
Sljivic, when speaking in terms of the ideas of Duncan Kennedy: “nationalism and its basis
in state sovereignty is the ‘hard’ rhetoric; and internationalism, which elevates communal
concerns and forms an exception of sorts to the dominant nature of nation-states, is the
‘soft’ rhetoric.”364
Both these sides have received critique from the other side that can easily be
recognized as similar critique as that of apology and utopia in international legal discourse.
The critique that has been given from the internationalist side against the nationalist side
that the nationalistic ideology trivializes cultural property into an economic and political
tool for national gain, leaving no room for the good of the item itself (or its most utilitarian
use), is one such obvious accusation of apology. Similarly, the internationalist ideology is
criticized for ignoring real-world circumstances (such as the difficulty of travel for most
third-world citizens) and expecting things that simply are not feasible in the real world – an
accusation of utopianism. Also many critics point out that the museums, too, with their
universal goals and aspirations “do not – and arguably cannot – live up to these utopian
goals.”365
However, as has been stated, the discourse works in a way that also turns
each argument around, so that both sides uses both ascending and descending
argumentation, and can be criticized of being both apologetic and utopist. When we look at
the cultural nationalist side, although it is based on the idea of the home culture nation’s
rights and authority, it also proposes ideas that have been criticized as being too unrealistic
and utopian. For example, the many critiques regarding the protection of cultural property
(from both physical harm and theft) in poorer countries, the concern over accessibility of
the objects, as well as, in many ways, the fear of the domino effect of restitution can be
seen as critique to say that the true realization of such an idea of pure and universal cultural
nationalism is too implausible and would only work in a fictional utopia where all would
be safe and everyone would have easy access to anywhere in the world.
Similarly, there are many apologetic sides in the way cultural
internationalism is used in argument. Obvious is the way that the internationalists argue in
364 Sljivic, 1998, p. 430365 Hoffman, 2010, p. 674
77
terms of an item becoming the national heritage of the holding culture, too, once it has
been there long enough and had an impact – the usual example being the Parthenon
Sculptures becoming British cultural heritage. Here they are purely using the nationalistic
argument for their advantage. But also the actual internationalist arguments hold many
apologetic sides to them: most of the “higher” ideals of internationalism are in practice left
to the holding countries and museums to decide upon, and often the principles of
protection and accessibility are used in such a way that purely secures the holding
country’s possession – usually as decided by the holding country itself.366 In many ways
the internationalist idea, at least in practice, is an apology of imperialism. It is, as has been
mentioned, through a history of imperialism that a great deal of these objects have been
collected. And there might indeed be some imperialistic attitudes still lingering, as
suggested in the previous chapter. It could even be argued that for the objects to be best
seen in a comparative context – as is often suggested – is actually a context of imperialism,
as the method of acquisition for such collections is often purely imperial, and the selected
cultures in such a collection are chosen through an imperialistic mindset.
The truth is that neither cultural nationalism nor internationalism could
actually make a compelling case without arguments of both kinds. In the meanwhile, the
same kind of indeterminacy as characterizes international law characterizes also cultural
property debate: both sides’ conclusions are just as supportable by reason. In many ways,
both sides can be seen as merely background assumptions of each individual – something
that they inherently feel that is right – and to compel anyone to actually change their mind
about such an assumption requires different kinds of (strong) arguments to back up the
presented viewpoints.367
All – or at least most – participants of the debate seem to make a clear
distinction between cultural property and politics – much like is done in international law.
However, the truth is that such a distinction is a practical impossibility, as even the whole
definition of cultural property is a matter of politics, and it is clear that cultural property is
always used as a political instrument. At the same time, although there seems to be a desire
to see cultural property as something purely outside something as “mundane” or secular as
politics, almost all those in the debate have at least an element of it in the way they feel it
366 Not the least because the holding museums (especially in such cases as I have discussed) tend to be theleading institutions in their respective fields.367 For a very concise example of such both-sided argumentation, see Reppas, 1999, p.933
78
should be decided upon. And, as has been apparent in the argumentation, it is almost a
practical impossibility to separate from politics, at least in the way that cultural property is
decided upon and understood now. Both sides also accuse the other side of reducing
cultural property to something menial and secular – already mentioned was the way
nationalism is accused of politicizing the matter, but in a similar way, internationalists are
sometimes accused of commodificating cultural property in their demands for a more free
international market.368
In a nutshell: the cultural property debate reveals a very similar
indeterminacy as is inherent in international law discourse. Because both sides can be
equally supported by reason and have equally compelling principles or ideals behind them,
one cannot (at least without subjective bias) place one side over the other. This is also why
both sides use also the other side’s arguments.
To some extent the similarities in the debate can, of course, be explained through the fact
that the cultural property debate is, in part, international legal debate. In purely legal terms,
the problems are a question of international law, and so any qualities of that debate will
also be visible in the cultural property debate. At the heart of the matter is the conflict
between the rights of two sovereigns. Both sides have their equally valid principles of
international law, and no such fundamental principles can be given true preference (if there
was such preference, the whole debate would be moot). The roots of the discussion are,
also, in the conflict of the (“secular”) sovereign power and higher (moral) principles. At
the same time there is the presence of the inviolability of the rights of the sovereign and
their will to do as they will, but also of moral rules that do guide the actions of people and
sovereigns, but also cannot be clearly defined and can have subjective interpretation. The
moral side cannot be ignored, but it also cannot be given preference – for many reasons,
one of them being that there is never a true clarity as to what the “right” thing is. Although
many perhaps agree with the cultural nationalist that the correct location of a piece of
cultural property is with its home culture, the internationalist can just as convincingly ask
“why?”
One place where the “international law language” and “cultural property
language” seem to differ more clearly is their history. In international law, the situation
368 Prott, 2005, p. 228. Prott also relates this type of internationalism to cultural imperialism.
79
was born from, so to say, a vertical conflict. The issue was the legitimization of the entire
international legal order, how its undeniable existence can be explained when neither the
ascending nor descending method is acceptable on their own. It is also quite purely an
intellectual dilemma (although with real-world implications). In this sense, the cultural
property issues rise from more horizontal conflicts. It is a history of attitudes and ideals
that develop over time when cultures have taken from other cultures. But when one looks
deeper into the history, there are also similarities present. In some ways, the verticality is
represented in the conflict of the actions of the sovereigns and the moral justification for
them, but more importantly, the development of the (essentially nationalist) ideals of every
nation’s right to their own cultural property is tied to the same development that led to the
liberal view in international law that inescapably determines its indeterminacy. This
development also shares the demands to separate the subject matter from politics.
7. Alternative Approaches
As already mentioned, for Koskenniemi the only way to escape the argumentation cycle
(that is, to decide an international case) is to bring external factors into the decision-
making. In cultural property debate, one way to escape the indeterminacy of the debate in
cultural property restitution is to (fundamentally) change the way that cultural property is
discussed – even to the extent of a paradigm shift. As the basic principles of the debate,
cultural nationalism and internationalism also include the indeterminacy as a fundamental
part of the debate. But although they are the established principles of understanding and
defining the subject matter, many have also suggested different other ways to understand
or govern cultural property. With such approaches, it might be possible to avoid the
endless argumentation brought by the current circumstances. In this segment I will bring
forward some different approaches as presented by different authors and contemplate on if
and how they might break from the argumentation loop. Of course, whether there is a need
for such a break is a completely different matter that I am not trying to press for one way
or another. The point here is to see whether the alternative approaches could be a way
forward if such an action were deemed necessary.
80
7.1. Cultural property as a non-renewable resource
Phyllis Mauch Messenger has presented the idea of approaching cultural property like a
non-renewable resource, or an endangered species. The essence of the idea is summarized
by Messenger:
So-called cultural properties are like environmentally endangered species. First, they arenon-renewable resources; once exhausted or destroyed, they cannot be replenished orreplaced. Second, they are not anyone’s property and no one can properly be said to ownthem. Our relationship to them is more like that of a steward custodian, guardian,conservator, or trustee than that of a property owner.369
This approach means that instead of focusing on who should gain the benefit from cultural
property, or who has the right to ownership, the focus should be on the preservation of the
objects, bearing in mind that “[t]heir protection and preservation is a collective
responsibility of all of us as stewards: it must acknowledge out important connection with
the past, be conducted with care and a sense of responsibility for peoples and their cultural
heritages, and respect for the context in which cultural remains are found.”370
With the non-renewable resource approach the whole terminology of the
debate changes. Because the ideas of property and ownership that generally are used in the
debate don’t perfectly fit anymore, it would be inappropriate to continue using those terms.
Messenger says that “a hierarchical model of conflict resolution simply is the wrong tool
for the job if what one is trying to do is resolve competing claims about who has what
communal responsibilities of care regarding the preservation of cultural heritages.”371
What she suggests is an “integrative perspective” that focuses on the heritage-values of the
objects (concerns that have less to do with property rights and more with culture and the
importance of an object to the cultural identities), emphasizes preservation and understands
the people as stewards, not owners of the objects and takes into consideration “the
diversity of values and perspectives involved in the resolution of heritage issues.”372 To
her, this approach means resolving conflicts through alternative methods of conflict
resolution, as well as collaboration projects such as loans and joint studies.373
369 Warren, 1999b, p. 19370 Id., p.19371 Id., pp. 19-20372 Id., pp. 20-21373 Id., pp. 19-22
81
While this approach certainly would mean a distinct difference to the very
nation-oriented debate, it might not mean a complete change from the current situation. For
one, this approach still doesn’t suggest a clearly different way to solve the problem of
where to situate the objects, and more importantly still focuses on a few key principles that
are central in the internationalism-nationalism debate, especially the preservation principle.
This way, nations still have ways of continuing the debate loop for their own benefit with
some of the same tools as are in use now. The most important point in this approach is,
however, that it would mean a shift away from thinking about cultural property in terms of
ownership, but rather in terms of more utilitarian values. However, this is such a great step
to take that it is questionable how successful it could really be. But were it to be successful,
it would mean an great change in the cultural property debate.
7.2. Cultural property as Nietzschean aphorism
Tatiana Flessas has likened cultural property to an aphorism in the thinking of Friedrich
Nietzsche. Unlike the previous approach, this is a way of defining cultural property
(instead of a new approach to the functions and meaning of cultural property), and unlike
usual definitions of cultural property – especially those in the legal instruments – it does
not focus on the physical features of the actual objects, but rather “the approach taken ... is
to look at the values that these definitions embody in order to understand the difference
between ‘cultural property’ [and the objects] not protected by these legal instruments.”374
In all such definitions, there is always a “gap” for some value that is unexplainable and still
integral.375
According to Flessas, “it becomes clear that the definitions of cultural
property turn on the valorization and preservation of life, all sorts of life and all sorts of
evidence of life.”376 In this sense, in the core of the cultural property is the interpretation
that they evoke in the observer, and to Flessas this interpretation should be performed with
the tools from the works of Friedrich Nietzsche, and his works regarding the values of
values. The defining gain in cultural property is the acquirement of self-knowledge, but the
objects never fully satisfy this desire:
374 Flessas, 2003, p. 1068. It should be noted that such a brief overview of the subject at hand cannot in fullconvey the original ideas in the full, and as such should not be viewed as an ideal summarization.375 Id., p. 1073376 Id., p. 1068
82
[T]he knowledge that is derived via the route of acquiring or studying cultural property willnever be enough to satisfy its “seekers”. Fundamentally, it cannot meet the intensity or“truth” of the experience that is generated by, or packed into, the object or practice. ... Theobject/practice at issue cannot contain the knowledge sought; it is the space and thedirection of the (desired) knowing that the cultural property opens up to and represents thatmust be liberated in order to understand the cultural property disputes. The para-rationalinvestment in the object must be reconciled, within the language of the definition ofcultural property, with the imperative of modern culture.377
Ultimately, “the cultural property functions a puzzle, creating, as well as accessing a/the
place of interpretation, which is an interpretation in itself.”378 This is one principal way in
which cultural property is a metaphor, and, according to Flessas, a Nietzschean metaphor
in particular.379
Finally, the Nietzschean metaphor extends to the way that we deal with
cultural property. The definition of (and the struggle to define) cultural property has arisen
from a situation of destruction, looting and theft of cultural property, and a culture where
“commentators fall back on the core self-justifying belief or principle in Western thought
that the true owners of a culture are the people that preserve it.”380
In a landscape of assured loss ... the highest expression of ownership rights now requiresthat the true owner desire the culture’s (or object’s) preservation above all.381
However, this leads the culture to a state of stasis – something that, according to Flessas,
observers (who are not part of the culture) value, but the participants in that culture do not.
By placing preservation above all, “then to make a claim regarding cultural property, and
to do so using the law, is already to exist in a state of bad consciousness.”382 This way is to
maintain dead things, a Necropolis, where nothing is discarded but also not allowed “life”
through continued use (and reinvention of the (always subjective) interpretation of (self-
)knowledge). This also means that those who preserve things also remove any other
choices from others, and “[t]here is only one way to value culture; there is only one correct
posture for experiencing ‘life.’”383
The value of these objects should be diluted by the constant expansion of the field, yet it isthe value of the values expressed in the definition of cultural property that becomes faint or
377 Id., p. 1078378 Id., p. 1079 (emphasis original)379 Id., pp. 1079-1082380 Id., p. 1092 (emphasis original)381 Id., pp. 1092-1093382 Id., p. 1093383 Id., pp. 1088-1094
83
vague against the backdrop of a plethora of things. In a world of increasingly preserved and“valuable” things, it is not clear any more why they are valuable.384
Because the Nietzschean aphorism approach is actually a way to define
cultural property instead of a new approach to what to do with it or how to govern it, it
wouldn’t necessarily mean that it actually changes anything in the restitution-retention
debate. However, because it is such a fundamentally different way of assessing cultural
property, and especially because it compels the evaluation of life of the objects in question,
it also forces one to rethink their approach to the way in which we preserve and utilize the
property. If a museum is a Necropolis of dead things, then perhaps there is a need to have
some of the objects back in a life where they’re in use, with the wisdom and knowledge
that they represent put in practice, as well as newly infused to them. Flessas also has an
interesting point into the way nationalism and internationalism function:
Knowledge of life continues to be the “object” of cultural property instruments, but it isknowledge already possessed rather than knowledge which is missing or lost that is atissue. In cultural nationalism, the underlying relationship to (the value of) knowledge isone of having rather than needing. All that is needed is the object that expresses theknowledge. In cultural internationalism, the object underwrites knowledge that mightotherwise be “lost” or withheld, knowledge that is directly relevant to the past/future of “allmankind” or to human beings in an evolutionary sense.385
7.3. Cultural pragmatism
According to Matthew R. Hoffman, in the last decade or so “[t]he museum community
recognized that the debate between cultural nationalism and cultural internationalism had
become counter-productive and offensive to many source countries”386 which led to the
development of a position (mainly inside the (American) museum community) he refers to
as cultural pragmatism. The idea is to find a middle-ground between cultural nationalism
and internationalism, through enhanced collaboration and respect between source countries
and the countries and museums that hold the objects. In this way, the museums respect the
source countries’ right to protect their own cultural property, but also the countries respect
the work the museums do that enhances knowledge and appreciation for the objects and the
cultures responsible for them.387
384 Id., p. 1094385 Id., p. 1080, footnote 44386 Hoffman, 2010, p. 685387 Id., pp. 685-686
84
The idea is that both sides would make compromises to accommodate all the
relevant parties’ needs, including not only the museums and source countries, but also
especially the licit market of cultural property (in order to weaken the illicit market and all
the damage it causes). Hoffman also suggests that states turn to the much praised Japanese
model of cultural property protection, where there are different tiers (each with a different
level of control) for cultural property of differing national importance, instead of the often
extremely strict and one-sided cultural property laws now widely used. The states would be
allowed to have an adjustment period where they would adapt their more strict restrictions
into the new model (and assigning more cultural property than needed into the strictest
controlled categories), and later when the supply and demand were manageable, would
lower less-important objects into the more open categories.388
As an approach to cultural property, cultural pragmatism is, as its name
suggests, a very sensible one. It is positive that the initiative for it has come from the
American museums, so it is clear that it should be acceptable even wider in the museum
community. Of course, the functioning of this approach depends heavily on the goodwill of
the parties. Both the museums and the source countries would, in effect, have to let go of
some of their claims to their cultural property and would have to trust that the other parties
would keep true to the collaborations in good faith. The licit market of cultural property is
also a slightly unknown factor – many believe that the greater acknowledgement of it
would stem the tide of illicit trade, but there is no guarantee and there are those who would
disagree. Of course, with the Japanese model the states would at least have a better say in
what is acceptable to be let into the marketplace (but at the same time there would have to
be a considerable amount of objects for the demand to be reasonably satisfied). There is
also the question of how much leeway cultural pragmatism in action would still leave for
the parties – if there was much that were left to them to still decide on, there would always
be the potential for the debate to simply continue as it is now. As an approach, cultural
pragmatism doesn’t exactly do away with nationalism and internationalism, it simply tries
to bring them closer together – which might not be as difficult a feat as it may seem due to
the way both sides in fact rely on the same argumentations, as shown in the previous
chapter. Either way, it is likely that more collaboration between the museums and source
countries would benefit both of them, even if the debate surrounding cultural property did
not change.
388 Id., pp. 685-692; summary of the Japanese model at pp. 689-690.
85
8. Conclusion
It would seem that nothing is quite simple when it comes to cultural property. Starting
from the fact that the term itself does not – and most likely cannot – have a set,
unambiguous definition, cultural property continues to invoke a passionate response from
all those involved with it. We can see in the history of cultural property that there is
something inherent about it that goes beyond what you can simply reason with a very
categorical approach. Be it the mana that Merryman has spoken of, or the “gap” in the
Nietzschean aphorism, cultural property continues to invoke the passions and emotions of
people as it has for as long as we have records of history. And cultural property is not
something that matters on just a personal level – it is also essentially tied with the
communities and other ties that bind people together, be it on a very intimate or a universal
and global level.
The history of cultural property shows that there has always been that
inherent mana about art (and cultural property overall), something that has made it seem
special and extraordinary and, indeed, even worth waging war over. Part of its sanctity also
comes from the fact that art was in Antiquity almost exclusively religious. There has been
a slow but constant change in the way art has been viewed in society – the Romans were
the first to institutionalize its plunder as an integral part of warfare; coming to the 17th
century art had become a part of the private splendor and might of the sovereign, but
started to again change into a public thing – but this time something especially national –
during and after the French Revolution; and finally starting with the aftermath of the Battle
of Waterloo, it began to be widely seen as something so inherently belonging to the people
of origin that plunder came to be a war crime, and even war reparations were not to be
taken from the cultural property of the people. This is illustrated by the fact that the 30
Years’ War was, indeed, the last case where the plunder of art in war (in a large scale)
would go without redress. In all following cases – be it Napoleon or Hitler – there would
be an effort by the victors to return all art that was taken to the place they were taken from,
and finally after World War II to even judicially sentence those responsible for it.
The emotional charge in cultural property is obvious when looking at the
restitution debate. It also exemplifies how fundamentally certain inherent background
assumptions can alter the way we see the same situation. Neither the nationalist nor the
internationalist side can argue that their point of view is any more fundamental or natural
86
than the other. Which side one feels more justified is, in fact, an unconscious personal
choice, born from all the cultural and other factors that define a person and their opinions.
That is also an important reason why a person arguing for either the retention or restitution
of cultural property needs to use – even if somewhat secretly – both nationalist and
internationalist arguments: it is extremely difficult to change someone’s opinion on them,
so it is rather better to try to invoke also the other side into one’s argumentation.
It is also clear that cultural property and the debate surrounding it cannot be
free of infusion with politics and other such secular issues. As something extremely
valuable and emotive, it is unavoidable that actors in the debate will consider every
advantage that cultural property can have. Obvious are the economic gains for even an
entire nation when they can hold iconic pieces of cultural property, but irrefutable are also
the myriad of political uses that cultural property can have – be it gaining popularity,
invoking communal emotion, populist rhetoric or shining a spotlight away from things one
wishes to hide. There are also countless way to interpret the matters surrounding the debate
– to one displaying cultural property is a grand celebration of the achievements of
humanity, to another it is an expression of imperialism. That is due to the indeterminate
nature of both cultural property and imperialism.
The discussion also is highly unlikely to disappear. Nations are not going to
give up trying to secure what they feel is their cultural heritage and property that belongs to
them, and no one can also deny the advantages (for everyone) that the universal museums
have. The debate will also follow along the same paths, as made sure by the argument
patterns that strongly reflect those that can be found in international law as presented by
Koskenniemi. It is almost surprising how strongly the discourse in cultural property
functions like the international law discourse, with, for example, clear arguments of
apology and utopia and the reversibility of arguments. Although in some ways the cultural
property debate is a part of the international law discourse, this parallel cannot alone
explain why the debate functions in the same way also on the non-legal side. The full
debate is also alike in that it pits against each other principles that are, in fact, useable for
either side of the debate, features the conflict of sovereign power and perceived higher
moral principles and shares some similarities in the historical development of the liberal
view, such as the (attempted) escape from politics. Perhaps the biggest difference is simply
in the fact that in cultural property debate, the principles stay the same, and those who
argue for them rarely change perspectives, unlike international lawyers.
87
A paradigm shift may be needed in order to steer away from this endless
argumentation cycle in cultural property debate, but whether such a change is needed is
another matter. Perhaps not – although as the discussion is now, due to the emotional
impact of cultural property on peoples everywhere, it does create negativity between those
who possess these objects and those who want them back. But since both sides already lean
on both types of arguments, perhaps there is some hope of a middle-ground being found.
According to Koskenniemi, the argumentation cycle in international law can only be ended
by applying external facts into the case. In the matter of cultural property debate, such a
change may perhaps be brought on by approaching cultural property overall from a
different angle.
In recent decades – to some degree starting with UNESCO 1970 – the scales
have been balancing more in favor of cultural nationalism, the restitution movement and
especially the rights of indigenous peoples to their cultural property. Usually parties try to
avoid taking the cases to court, as the process would be extremely expensive and
cumbersome, and the resulting judgment somewhat unpredictable. That is why, for
example, mediation and other modes of alternative dispute resolution have been brought
forth and preferred as a better alternative.389 However, as some of the cases as well as the
presented alternative approaches have shown, there is good hope for ways completely
outside the legal system to settle such disputes. The Icelandic Manuscripts case was settled
through diplomatic negotiations, and as the American museums’ new pragmatic approach
has shown, there is a possibility to find a middle-ground between the interests of the
restitutionists and retentionists, or nationalists and internationalists. If such a middle-
ground were to be found through improved co-operation between the different actors –
museums, nations, communities etcetera – and the required goodwill and trust found, it
could mean benefits for everyone involved, as well as the chance for the requirements of
both parties to be met. For example, loan programs could mean both that the iconic works
of a certain culture, currently on display in a foreign nation, would be available on display
in its home culture, and that works could be allowed to tour the world so that the cultural
property is accessible to all the people in the world, as required by cultural
internationalism. But perhaps true change to the debate can only be achieved through a
complete shake-up of the fundamentals of the concept of cultural property.
389 See for example Mealy, 2011; Cornu & Renold, 2010; Ounanian, 2007